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The Court of Appeal held it lacked jurisdiction over an appeal about a construction lien discharge and transferred the matter to the Divisional Court.
The motion judge erred by granting summary judgment because Queen raised a legitimate contributory fault defence that required credibility and expert determinations not resolvable on the record, and because granting summary judgment risked inconsistent findings with a related subrogated action; accordingly summary judgment was inappropriate and the motion was dismissed as against Queen with direction to pursue consolidation under r.6.01.
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The Court dismissed the motion to quash the appeal because the judgment below flowed from a Rule 20 determination under the Rules of Civil Procedure (Courts of Justice Act) and was based on a non‑statutory contract claim, so the substance of the order placed the appeal within the Court of Appeal's jurisdiction under s.6(1)(b) of the Courts of Justice Act rather than under s.71 of the Construction Act.
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The trial judge properly exercised discretion to allow equitable set-off because the contracts were related, both parties had breaches that did not amount to unclean hands, and the alleged breach of trust was not established as funds were adequately accounted for; there was no palpable and overriding error or extricable error of law.
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The assembled evidentiary record, including affidavits, cross-examination and consultant certification, allowed the motion judge to make necessary factual findings and apply the law under r.20 and Hryniak; there was no genuine issue requiring trial and summary judgment on liability and breach of trust was appropriate, with appellate deference to those findings; concerns about partial summary judgment were moot given subsequent resolution of other parties' claims.
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The court found the builder’s cost-plus accounting inadequate, disallowed contractual and statutory interest, allowed limited counterclaim items, and ordered a net payment of $5,150.
Because the advances that funded the improvements were made years before the third mortgage was taken and registered, they were not advances "in respect of" that mortgage under s.78(6), and s.78(2) applies prospectively so the mortgagee could not rely on it; therefore the lien claimants have priority over the registered third mortgage.
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The appeal was dismissed because appellants failed to raise a genuine issue for trial on the first prong of economic duress—no protest, available legal alternatives, independent legal advice, and no prompt steps to avoid the agreement—so the Minutes, including the guarantee and release, were enforceable and the counterclaim was barred by the release.
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The court set aside a default judgment against Icon Projects Ltd., finding the defendants had not wilfully ignored the claim and had acted promptly with an arguable defence.
Because the trial judge reopened the case to admit evidence he found material to credibility and then failed to address or resolve that evidence in his reasons, appellate review of credibility findings and the lien issue was precluded; appeal allowed, trial judgment set aside and a new trial ordered.
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