Canadian Comstock v. Toronto Transit Commission

Canadian Comstock v. Toronto Transit Commission

Owner was entitled to the protection of s.11(6) because it had made no payment after notice and confined its claim for non-completion to the additional certified-but-unpaid sums; consequently the subcontractors could not compel those additional funds to be applied to their liens beyond the statutory holdback, and the Court dismissed the appeals affirming the Court of Appeal's allocation of priority.

Citation
[1970] SCR 205
Parties
Appellant Subcontractor: Canadian Comstock Company Limited; Respondent Owner: Toronto Transit Commission; Respondent Owner: Municipality of Metropolitan Toronto; Respondent Trustee of Bankrupt Contractor: Trustee of the Estate of Anglin-Norcross Ontario Limited, a Bankrupt
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
21 October 1969
Procedural Posture
Mechanics' Lien Appeal (construction) / Appeal to Supreme Court of Canada From Court of Appeal for Ontario; Final Judgment
Outcome
Appeals dismissed with costs; Court of Appeal decision affirmed
Legal Topics
Mechanics' Liens, Statutory Holdback, Set Off, Priority of Claims, Contract Abandonment
Source Language
English
Property Construction Law Bankruptcy Civil Procedure Contract Law Mechanics' Liens Statutory Holdback Set Off +2 more

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Parties

Canadian Comstock Company Limited

Appellant Subcontractor

Toronto Transit Commission

Respondent Owner

Municipality of Metropolitan Toronto

Respondent Owner

Trustee of the Estate of Anglin-Norcross Ontario Limited, a Bankrupt

Respondent Trustee of Bankrupt Contractor

Procedural Posture

Mechanics' Lien Appeal (construction) / Appeal to Supreme Court of Canada From Court of Appeal for Ontario; Final Judgment

Legal Issues

  1. 1 Whether subcontractors holding mechanics' liens are entitled to claim against additional certified-but-unpaid sums held by the owner beyond the statutory holdback
  2. 2 Whether owner may assert a right of set-off for completion costs and damages against those additional sums
  3. 3 Effect of s.11(6) (payments made in good faith before notice) on priority

Ratio Decidendi

Owner was entitled to the protection of s.11(6) because it had made no payment after notice and confined its claim for non-completion to the additional certified-but-unpaid sums; consequently the subcontractors could not compel those additional funds to be applied to their liens beyond the statutory holdback, and the Court dismissed the appeals affirming the Court of Appeal's allocation of priority.

Court Disposition

Appeals dismissed with costs; Court of Appeal decision affirmed

Orders

  • Appeals dismissed with costs.
  • Owner entitled to set-off against additional certified-but-unpaid sums in its hands beyond the statutory holdback; subcontractors limited to statutory holdback and amounts recoverable under the Act.