Executive Summary: Key Legal and Evidentiary Issues

• Aplus General Contractors Corp. moved under Rule 15.04(7) and section 47 of the Construction Act to dismiss AMF's lien action after AMF abandoned its counsel and ignored the court's trial-scheduling orders.
   
• No one appeared for AMF at the July 22, 2026 hearing, despite Aplus having served the motion materials at the address specified in the earlier removal order.
   
• The dispute centered on AMF's $415,350.39 lien claim for unpaid invoices against Aplus's set-off and counterclaim for deficiency and delay costs.
   
• Evidentiary gaps arose because AMF failed to serve required expert reports and other trial materials by the court-ordered deadlines.
   
• Costs became a significant issue, with Aplus seeking actual costs on the basis that the litigation amounted to costs thrown away.
   
• Ultimately, the court dismissed both AMF's action and Aplus's counterclaim, the latter without prejudice to revival if the TTC back-charge crystallizes.
   

Facts of the case

This matter arose from a construction lien dispute between AMF All-Metal Fabricating Limited ("AMF"), the plaintiff and lien claimant, and Aplus General Contractors Corp. ("Aplus"), the defendant. AMF's lien claim sought $415,350.39 for unpaid invoices. Aplus defended and asserted a set-off and counterclaim described in the decision as being in the amount of $1.3 million for deficiency costs and delay [later in the reasons, this counterclaim is broken down as in excess of $728,000 for deficiency correction costs and in excess of $456,000 for delay damages, with the combined claims going to trial — including AMF's own claim — described as totaling almost $1.6 million; the $1.3 million figure is not fully reconciled against these more granular figures]. The underlying reference was originally commenced by a union representing AMF's workers in December 2022; the union claim was resolved quickly, but AMF remained active in the litigation. Associate Justice Wiebe conducted nine trial management conferences over the course of the proceeding and ordered a Scott Schedule along with production and discovery. Aplus's own delay concerns were tied to the project owner, the Toronto Transit Commission (TTC), which was accumulating potential back-charges for delay liquidated damages against Aplus — damages Aplus attributed largely to AMF. The project remained uncompleted at the time of this decision. At a trial management conference on August 18, 2025, the court ordered service of primary expert reports by October 31, 2026 [this date, as stated in the decision, falls after the scheduled trial and appears inconsistent with the rest of the timeline] and responding reports by December 31, 2025. At a further conference on September 16, 2025, an 11-day summary trial was scheduled to begin August 5, 2026. The court also ordered requests to admit by December 1, 2025, and required AMF to serve its affidavits for evidence-in-chief first, by March 31, 2026, with a Joint Document Book, trial record, discovery read-in briefs, and case briefs due by July 17, 2026. On November 13, 2025, AMF's lawyers moved to be removed as counsel of record, citing an irreparable breakdown in the lawyer-client relationship; the court granted the removal order, which was served on AMF by mail on November 18, 2025. By July 8, 2026, counsel for Aplus advised the court by email that AMF had neither retained new counsel nor obtained leave to be represented by a non-lawyer, and had failed to comply with the trial-scheduling orders, including failing to serve an expert report. This prompted the motion heard on July 22, 2026. At that hearing, the court was satisfied that Aplus had served its motion materials on AMF in a timely way at an address specified in the removal order, and had also attempted service by the email address listed in that order, though the email address was not functional. No one appeared for AMF.

Policy and legislative provisions at issue

Aplus brought its motion pursuant to Rule 15.04(7) and section 47 of the Construction Act. The motion sought an order dismissing AMF's action, discharging AMF's lien, requiring the return of Aplus's posted lien security, dismissing the Aplus counterclaim without prejudice to it being revived once the TTC's back-charge for delay liquidated damages is crystallized (if it is imposed at all), and awarding the costs of the action and of the motion.

Reasoning and analysis

Associate Justice Wiebe found that AMF had effectively abandoned the action. The court noted that AMF had pressed for the litigation and trial to proceed despite Aplus's legitimate concerns about doing so while the TTC's delay back-charge remained unresolved, only to abandon its lawyers and the reference on the eve of serious trial preparation. The court observed that Aplus had incurred the expense of obtaining a lengthy delay expert report by the applicable deadline, while AMF had not, and that this report appeared to have influenced AMF's decision to abandon the action. On this basis, the court characterized AMF's conduct as having forced litigation costs onto Aplus in an apparent attempt to extract a quick resolution, only for AMF to withdraw once the trial became imminent. The court accepted the submission of counsel for Aplus that the costs of the action should be awarded on an actual basis, as "costs thrown away," finding the quantum reasonable given the extent of activity in the proceeding and the effort made to allocate work to lower-costing lawyers and clerks. The same reasoning was applied to the costs of the motion itself, which the court found was made necessary entirely by AMF's non-compliance with the court's directions, including AMF's disregard of the motion despite being properly served.

Ruling and overall outcome

The court granted Aplus's motion in full. AMF's action was dismissed, its lien was discharged, and Aplus's posted lien security was ordered returned to it. The Aplus counterclaim was dismissed, but without prejudice to it being brought back once the TTC's back-charge for delay liquidated damages is crystallized, if it is imposed at all. On costs, the court awarded Aplus $450,000 in actual costs for the action (other than the motion) and $17,000 in actual costs for the motion, for a total of $467,000 payable by AMF to Aplus. The scheduled trial dates were vacated. Aplus General Contractors Corp. was the successful party, and the total monetary award in its favour was $467,000 in costs.