The Ontario Court of Appeal in BCIMC Construction Fund Corporation v. 33 Yorkville Residences Inc., 2023 ONCA 1, recently upheld the Ontario Superior Court of Justice's decision that construction lien claimants are entitled to one holdback fund of 10% regardless of the number of building mortgages registered on title to the subject property improved.
In their decision, the Ontario Court of Appeal determined that the matter is one of statutory interpretation with respect to s. 78(2) of the Construction Act. Applying a correctness standard of review, the Court found that there was no error in the motion judge's identification or application of the applicable rules of statutory interpretation. The Court ultimately agreed with the motion judge's interpretation of the statute and its application to the facts of the case.
Takeaway: The Ontario Court of Appeal's decision confirms that lien claimants are entitled to one holdback fund of 10% regardless of the number of construction mortgages registered.
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