Order refusing stay of summary judgment was interlocutory

Construction Law - Construction and builders' liens - Practice on enforcement of lien

Plaintiff installed glass for residential condominium project pursuant to contracts with defendant. Plaintiff brought partially successful motion for summary judgment against defendant on construction lien claim. Motions judge found genuine issue for trial as to whether defendant was entitled to set off amount owing under glass guardrail contract against amount spent to repair problems with guardrails. Motions judge found plaintiff was entitled to partial summary judgment for contract for installation of windows and doors, and that defendant owed plaintiff $84,201.80 for installation of windows and doors. Motions judge found plaintiff was entitled to partial summary judgment in amount of $53,839.42 with respect to glass shower enclosures extra, and that there was no genuine issue for trial as to defendant's liability to pay amount outstanding. Motions judge found plaintiff was entitled to partial summary judgment in amount of $19,484.07 with respect to mirrors and hollow glazing extras, which were extras to windows and doors contract. Motions judge ordered mini-trial with respect to issue of amount owing for caulking work. Defendant appealed. Appeal dismissed. Subsection 71(3) of Construction Lien Act provided that no appeal was available from interlocutory order. Jurisprudence found that order refusing stay of summary judgment was interlocutory. Court did not have jurisdiction to hear matter.

Man-Shield (NWO) Construction Inc. v. AGC Flat Glass North America Ltd. (2019), 2019 CarswellOnt 10537, 2019 ONSC 3993, Lafreniere J., Myers J., and Williams J. (Ont. Div. Ct.); affirmed (2019), 2019 CarswellOnt 5645, 2019 ONSC 1163, F. Bruce Fitzpatrick J. (Ont. S.C.J.).

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