Urbacon Building Groups Corp. v. Guelph (City),

• Jurisdiction: Ontario
• Judge: Ricchetti, J.
• Neutral Citation: 2014 ONSC 3840
• Citation: 2014 ONSC 3840,(2014), 327 O.A.C. 6 (DC),327 OAC 6,(2014), 327 OAC 6 (DC),327 O.A.C. 6
• Date: 20 June 2014
• Court: Superior Court of Justice of Ontario (Canada)

Urbacon Building Groups v. Guelph (2014), 327 O.A.C. 6 (DC)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. AU.022

In The Matter Of the Construction Lien Act, R.S.O. 1990 c. C30

Urbacon Building Groups Corp. (plaintiff) v. The Corporation of the City of Guelph (defendant)

(866/08; DC-14-39; 2014 ONSC 3840)

Indexed As: Urbacon Building Groups Corp. v. Guelph (City)

Court of Ontario

Superior Court of Justice

Divisional Court

Ricchetti, J.

June 24, 2014.

Summary:

In 2006, the City of Guelph entered into a contract with Urbacon Buildings Groups Corp. for the construction of a civic administration complex. During the course of construction, disputes arose between the parties. In September 2008, the construction on the project ceased. The City took the position that Urbacon had breached its contract. Urbacon took the position that the City had breached its contract. Numerous construction liens were registered on title. Urbacon commenced a lien action seeking $15,000,000 in damages. The City counterclaimed, seeking $5,000,000 in damages. The parties obtained a bifurcation order. The liability portion was determined in favour of Urbacon. The City appealed and moved for a stay of proceedings (damages portion) pending the determination of the appeal.

The Ontario Divisional Court, per Ricchetti, J., dismissed the motion.

Mechanics' Liens - Topic 8091

Practice - Stay of action - General - In 2006, the City of Guelph entered into a contract with Urbacon Buildings Groups Corp. for the construction of a civic administration complex - During the course of construction, disputes arose between the parties - In September 2008, the construction on the project ceased - The City took the position that Urbacon had breached its contract - Urbacon took the position that the City had breached its contract - Numerous construction liens were registered on title - Urbacon commenced a lien action seeking $15,000,000 in damages - The City counterclaimed, seeking $5,000,000 in damages - The parties obtained a bifurcation order - The liability portion was determined in favour of Urbacon by MacKenzie, J. - The City appealed and moved for a stay of proceedings (damages portion) pending the determination of the appeal - The City argued that the court had broad jurisdiction to grant a stay of proceedings under ss. 106 and 134 of the Courts of Justice Act - The Ontario Divisional Court, per Ricchetti, J., dismissed the motion - MacKenzie, J.'s order did not constitute a "judgment" as the reasons did not finally dispose of the actions in this case - The reasons only made a finding of liability - Until the issue of damages and costs were determined, the actions were not finally disposed of on their merits - As a result, an order arising from MacKenzie, J.'s reasons, being his determination on the liability phase of the trial, was an interlocutory order which might not be appealed until after MacKenzie, J., had completed the damages phase of the trial as no appeal lied from such an interlocutory order under the Construction Lien Act - Accordingly, the court lacked jurisdiction to grant a stay of proceedings - See paragraphs 35 to 51.

Mechanics' Liens - Topic 8091

Practice - Stay of action - General - In 2006, the City of Guelph entered into a contract with Urbacon Buildings Groups Corp. for the construction of a civic administration complex - During the course of construction, disputes arose between the parties - In September 2008, the construction on the project ceased - The City took the position that Urbacon had breached its contract - Urbacon took the position that the City had breached its contract - Numerous construction liens were registered on title - Urbacon commenced a lien action seeking $15,000,000 in damages - The City counterclaimed, seeking $5,000,000 in damages - The parties obtained a bifurcation order - The liability portion was determined in favour of Urbacon by MacKenzie, J. - The City appealed and moved for a stay of proceedings (damages portion) pending the determination of the appeal - The Ontario Divisional Court, per Ricchetti, J., dismissed the motion - There was a serious issue to be tried - However, there was no irreparable harm - Harm that was financial and was quantifiable was not irreparable harm - Finally, the balance of convenience favoured Urbacon - See paragraphs 52 to 69.

Mechanics' Liens - Topic 8162

Practice - Appeals - Jurisdiction - [See first Mechanics' Liens - Topic 8091 ].

Mechanics' Liens - Topic 8166

Practice - Appeals - From interlocutory decisions - [See first Mechanics' Liens - Topic 8091 ].

Practice - Topic 8951

Appeals - Stay of proceedings pending appeal - Jurisdiction - [See first Mechanics' Liens - Topic 8091 ].

Cases Noticed:

Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. et al. (1990), 40 O.A.C. 117; 74 O.R.(2d) 161 (C.A.), refd to. [para. 32].

Bourne v. Saunby (1993), 23 C.P.C.(3d) 333 (Ont. Gen Div.), refd to. [para. 36].

Air Canada et al. v. WestJet Airlines Ltd. et al., [2005] O.T.C. 1092; 20 C.P.C.(6th) 141 (Sup. Ct.), refd to. [para. 36].

Noon v. Greater Sudbury (City) et al., [2010] O.T.C. Uned. 185; 2010 ONSC 185, refd to. [para. 37].

Villa Verde L.M. Masonry Ltd. v. Pier One Masonry Inc. et al. (2001), 144 O.A.C. 136; 54 O.R.(3d) 76 (C.A.), refd to. [para. 43].

2156384 Ontario Inc. v. C & K Property Management Inc. et al., [2012] O.A.C. Uned. 806; 2012 ONSC 6759, refd to. [para. 45].

Donino et al. v. Robinson et al., [2006] O.T.C. 1441; 2006 CanLII 42658 (S.C.), refd to. [para. 47].

Ogden Entertainment Services v. United Steelworkers of America, Local 440 et al. (1998), 110 O.A.C. 297; 38 O.R.(3d) 448 (C.A.), refd to. [para. 53].

Ottawa (City) v. Chief Building Official of Ottawa (City) et al. (2003), 180 O.A.C. 48; 67 O.R.(3d) 490 (Div. Ct.), refd to. [para. 59].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 62].

Counsel:

D. Schmuck, for the defendant/moving party;

M. Drudi, for the plaintiff/responding party;

M. Ruberto, for the lien claimants.

This motion was heard on June 20, 2014, by Ricchetti, J., of the Ontario Divisional Court, who delivered the following endorsement on June 24, 2014.