Recent Cases
A proven track record of navigating complex construction disputes.
We represent clients across the sector with a focus on achieving early and cost-effective resolution with pragmatic results. Where formal proceedings are unavoidable, our clients’ successes reflect our commitment to securing favourable outcomes through strategic advocacy.
Oakleigh Holdings Inc. v. Demikon Construction Ltd., 2026 ONSC 1660 (CanLII)
This ruling from the Ontario Superior Court of Justice addresses motions to dismiss two lawsuits stemming from a single condominium development project known as Matchedash Lofts. The defendant, Demikon Construction Ltd., sought to strike claims brought by Oakleigh Holdings Inc. and Aurelia Limited Partnership, arguing that the multiple proceedings constituted an abuse of process and a wasteful multiplicity of litigation.
At the hearing of the motion, the respondents agreed to discontinue their counterclaim which effectively dealt with the relief being sought by Demikon on one of of the motions. Justice Boswell then examined whether a separate claim regarding balcony deficiencies should be allowed to proceed independently. Justice Boswell ultimately ordered that the balcony deficiency action be heard together with, or immediately following, the primary construction lien action to ensure judicial economy and procedural efficiency.
The decision emphasizes the court’s commitment to the (then) Construction Lien Act’s goal of resolving all project-related disputes in a single, comprehensive manner.
Counsel
Saxberg v. Seargeant Picard Incorporated, 2024 ONCA 931 (CanLII)
Our client’s construction project was discovered to be defective and extensive damage required expensive repairs. We successfully resisted the contractor’s appeal of the Superior Court’s refusal to grant summary judgement and dismiss our client’s claim based on the contractor’s position that the limitation period had expired. The Court of Appeal also upheld the judge’s “boomerang” order that specifically stated that the claim was within the limitation period.
Counsel
Demikon Construction Ltd. v. Oakleigh Holdings Inc., 2024 ONSC 6261 (CanLII)
In the case of Demikon Construction Ltd. v. Oakleigh Holdings Inc., the court clarified that owners cannot receive credit for “jumping the rung” of the construction pyramid under Section 28 unless the recipient is a person currently holding a valid lien. The ruling overturned a lower court’s decision, emphasizing that these payments do not automatically reduce the security posted to vacate a lien if they occur after lien rights have expired.
Furthermore, the court highlighted the importance of verifying that funds are actually owed to the subcontractor, specifically when the contractor alleges deficiencies or delays. To avoid legal risks, owners ought to obtain formal acknowledgments or debt assignments rather than relying on moral obligations to pay trades directly. This legal precedent serves as a critical warning for payers to strictly adhere to the statutory requirements of the Construction Act when bypassing contractual privity.
We note that the defendants, Oakleigh and Aurelia, obtained leave to Appeal. The Court of Appeal is hearing the appeal in May 2026, and we will report back with the decision of the Court of Appeal.
Counsel
Accurate Railroad Construction Ltd. v. Sierra Infrastructure Inc., 2024 ONSC 3722
In this matter, Sierra successfully obtained a determination in its favour in an adjudication under the Construction Act. Accurate brought a motion for leave to apply for judicial review on, the basis that the determination was, at least in part, “made as a result of fraud”, under s.13.18 of the Act (which allows for judicial review on only limited grounds). Accurate argued that the civil standard of fraud (which can include intentional misrepresentations) should apply, such that a determination can be set aside where a party merely alleges that another spoke a non-truth such that the adjudicator came to a wrong conclusion. It also argues that it need not pay the disputed amount pending the outcome of the motion.
In an interim hearing, the Court required Accurate to pay the disputed amount into Court pending a ruling on the motion by the Divisional Court. It then dismissed the motion for judicial review based on alleged civil fraud.
Counsel
Saxberg v. Seargeant Picard Incorporated, 2024 ONSC 1079 (CanLII)
We acted for homeowners who had commenced an action against their builder to recover the cost of rectifying significant water penetration deficiencies to their $5 million custom home which were discovered more than three-years after the construction was complete, when they retained a roofer to perform certain roof upgrades.
We successfully defended the builder’s motion to declare the action expired and, also, obtained a “boomerang” order that the action was, in fact, obtained in time. The builder argued that the owners had discovered their claim when, upon completion of additional work, it had refused to perform which it said was neither necessary nor required by code.
The case is significant because it deals with the “plausible inference of liability” test for determining when the limitations clock starts ticking, as that test had been recently established by the Supreme Court of Canada in Grant Thornton LLP v. New Brunswick, 2021 SCC 31.
Counsel
Devlan Construction Ltd. v SRK Woodworking Inc., 2023 ONSC 3035 (CanLII)
In this leading case, we successfully appealed a Motion Judge’s decision that the (new) Construction Act, RSO 1990 c. C30 allows claimants to join a breach of trust claim with an action to enforce a construction lien. The Divisional Court agreed with our submissions that a trust claim is not a contract claim, that the Act precludes the joinder of non-contract claims and that adding a breach of trusts claim as of right would unreasonably complicate a lien action by increasing documentary production, examinations for discovery, the number of parties and the issues to be tried (all contrary to the requirement that a lien action be tried as expeditiously and inexpensively as possible).
Counsel
1917196 Ontario Ltd. v. Kazmi, 2023 ONSC 384 (CanLII)
In this action, we successfully represented 4 homeowners in a lien action commenced by their builder in an action to recover substantial amounts allegedly owed in the construction of new homes for which it had failed to provide a Tarion new home warranty. The builder’s claim was dismissed and we obtained a Judgment in favour of the homeowners for over twice the quantum of the builder’s claim, along with an order that the builder’s principal pay the homeowner’s costs, personally, in the sum of $225,000.00.
Counsel
CRD v. Aviva, 2021 ONSC 1109 (CanLII)
In this matter, we successfully brought an application to compel an insurer to provide a defence to a counterclaim in circumstances where prior counsel had failed to give notice of the counterclaim to the insurer for almost 3.5 years. The issues on the application included the concepts of relief from forfeiture, waiver and prejudice in the context of an insurance policy as well as the application of the Insurance Act in that regard. The decision is currently under appeal.
Counsel
Jacobs v. Leboeuf Properties Inc., 2019 ONCA 551 (CanLII)
Here, a new-home builder had required the homeowner, in its form of contract, to obtain “all-risks” insurance coverage for “damage resulting from defective design, workmanship or material”. We acted for the homeowner and successfully appealed from a motion decision which had held that the homeowner undertaken in the contract to insure the contractor against its own deficiencies, such that the contractor could refuse to correct them and require the homeowner to call on his insurance, instead.