The Ontario Superior Court of Justice has ordered York University and three other parties to pay $23,209,492.15 into court to secure a minimum construction holdback in litigation over York’s Markham campus.
In A+B Ampere & Birnie Electric Joint Venture v. Markham (City), 2026 ONSC 5408, Justice P. Sutherland ordered payment within 30 days of the September 23, 2026 decision. The amount includes HST.
The order binds York University, York University Development Corporation, the City of Markham and York University Board of Governors. It secures money while the litigation continues; it does not award damages or direct payment to subcontractors. The final holdback amount and each claimant’s entitlement remain unresolved.
Campus opened before holdback dispute was resolved
York contracted with Stuart Olson Construction Ltd. to manage construction on city-owned land. The original construction contract was worth approximately $172 million. The plaintiffs’ electrical subcontract had an original price of about $12.2 million.
The campus opened to students in September 2024. Substantial performance was certified on March 17, 2025, and the certificate was published on March 25.
After different holdback figures were provided, York put forward $23,209,492.15 for this motion. The plaintiffs and other lien claimants attending accepted it as the minimum amount to be secured. Their acceptance did not settle the ultimate accounting.
Olson supported the motion, but its own lien concerned later work and was excluded from the minimum holdback at issue. The court applied the former Construction Lien Act provisions because the improvement was procured before July 1, 2018, bringing it within the statutory transition rules.
Why the court would not wait
The responding parties argued that the motion was premature. A court-appointed vetting committee was reviewing the liens and holdback, with recommendations due December 15, 2026.
Justice Sutherland distinguished securing a minimum fund from deciding who should receive it. The committee’s recommendations would not bind the court. Placing money with the court would facilitate any later payment order and advance resolution of the security issue without determining the outstanding claims.
The responding parties also argued that the liens had already been removed from property title through posted security, making an immediate holdback order unnecessary. The judge rejected that position. Olson had supplied the security for most liens, supported the motion and had not thereby eliminated the separate need to secure the holdback fund.
Separate-account obligation was not met
The construction contract required York, where holdback was not already in a separate bank account, to place it in a joint account with Olson before the holdback period expired.
The judge found York had not complied. The evidence instead showed holdback money mixed with other funds in an account controlled solely by York. Olson had no withdrawal authority.
Justice Sutherland also pointed to evidence of withdrawals for purposes other than paying holdback to subcontractors. That reinforced the need to preserve the money through payment into court.
Setoff arguments remain for a later stage
The responding parties argued that claims for deficiencies and incomplete work could be set off against holdback. The judge held those arguments did not prevent the agreed minimum from being secured now.
Whether a valid setoff at an applicable level of the construction contracting chain could affect a future payment would be decided if that issue arose. No subcontractor was seeking payment out on this motion.
The court relied on the holdback scheme’s protective purpose and its discretion under the summary judgment rules to order security. The ruling illustrates the distinction between preserving a fund and finally distributing it, rather than resolving the project’s competing financial claims.
Costs were left for agreement or written submissions; no costs amount was fixed in the decision.
