Allen Wilford

Following dismissal of a motion seeking numerous forms of relief in a construction lien dispute, several successful parties sought costs against the moving owners.

The court considered the presumption that successful litigants receive costs and the factors under Rule 57.01(1) of the Rules of Civil Procedure.

The court rejected arguments that alleged misconduct by the successful parties disentitled them to costs and held that the motion was largely unsuccessful and unnecessary in several respects.

Full recovery costs were awarded to one contractor whose claim should never have been contested, while partial indemnity costs were granted to the contractor and subcontractors in reduced amounts to remain fair and proportionate.

The moving parties, owners of a motel, brought a motion under s. 47(1) of the Construction Lien Act to discharge or vacate several construction liens registered by the contractor and subcontractors.

The owners argued the liens should be discharged or, alternatively, vacated upon posting $100,000 as security.

The court dismissed the motion, finding that a motion to discharge a lien is akin to a summary judgment motion and there were numerous genuine issues of material fact requiring a trial, including responsibility for delays, scope of the contract, and quality of work.

The court also declined to arbitrarily reduce the security amount required to vacate the liens from the $489,000 claimed.

In an estates proceeding involving an application to pass accounts, a beneficiary brought a motion seeking disclosure of bank records from several years before the estate trustees assumed their roles.

The moving party argued that substantial proceeds from the sale of the deceased’s home appeared unaccounted for and requested that the estate trustees sign releases permitting access to earlier bank records.

The court held that estate trustees are not obligated to investigate or disclose financial records predating their fiduciary responsibilities absent evidence linking them to alleged improprieties.

The evidentiary record did not establish a reasonable basis to infer wrongdoing or missing funds.

The motion for disclosure was dismissed.

The applicant mother sought child support, section 7 expenses, and spousal support arrears from the respondent father.

The court found the father was intentionally underemployed after leaving a lucrative sales position to start his own business and rely on social assistance.

The court imputed an annual income of $50,000 to the father from 2011 onwards.

The court ordered the father to pay child support, section 7, and spousal support arrears based on the parties' actual and imputed incomes, with monthly payments totaling $1,000.

A contractor brought a construction lien action against homeowners for unpaid invoices relating to electrical work performed on a newly constructed log home.

The homeowners argued the claim was unenforceable because the agreement was not in writing as required by the Consumer Protection Act, 2002, and counterclaimed for damages for alleged defective work.

The court held that although the oral agreement contravened the statutory requirement for a written future performance agreement, it would be inequitable to invalidate the contract under s. 93(2) because the work was substantially performed and the homeowners received benefit.

The contractor was not entitled to a materials markup, travel time charges, or reimbursement for newly purchased equipment, but otherwise proved entitlement to payment.

The counterclaim alleging defective work and damages was dismissed for lack of evidence.

In insolvency proceedings involving a corporate plaintiff in receivership, the defendant moved to dismiss the related civil action for delay, relying primarily on Rule 11 of the Rules of Civil Procedure and alleging prejudice arising from the receiver’s failure to obtain an order to continue following the appointment of a receiver.

After issuing an earlier endorsement approving the receiver’s conduct and the assignment of the claim, the court clarified that the defendant had intended to maintain its Rule 11 motion despite abandoning its Rule 24 delay motion.

The court held that the receiver had acted reasonably during the stay period and that the time taken to assess and assign the claim did not constitute unacceptable delay.

Allegations of prejudice, including the death of a witness and departure of employees, were unsupported by evidence and did not establish real prejudice.

The motion to dismiss was therefore formally dismissed.

A municipality applied for court confirmation of emergency building orders relating to a failed residential septic system and sought recovery of remediation costs to be added to the property tax roll under the Building Code Act and Municipal Act.

The court held it lacked jurisdiction to confirm the municipality’s orders because statutory service and procedural requirements under the Building Code Act had not been complied with.

The court nevertheless found the septic system had failed and that the municipality reasonably incurred pumping costs to mitigate sewage seepage.

Fees related to an engineering report were not recoverable because the municipality unreasonably delayed disclosing the report to the homeowner.

Judgment was granted only for the septic pumping costs, which were ordered to be added to the property’s tax roll as a priority lien.

The accused was charged with sexual assault, sexual interference, and invitation to sexual touching involving a child under 16.

The court assessed conflicting testimony between the accused and the complainant, a child who testified via audio link, and examined alleged inconsistencies raised by the defence.

The judge rejected the accused’s testimony as unreliable and found the complainant’s evidence credible and compelling despite a minor inconsistency.

The court held that the complainant’s testimony established the essential elements of the offences beyond a reasonable doubt.

Convictions were entered on all three counts.

In matrimonial litigation involving equalization claims and control of a seasonal motel business, the husband sought authorization to complete an agreement of purchase and sale of the property to a third‑party purchaser, disclosure from the court‑appointed receiver, and temporary permission to travel outside Canada to attend his mother's funeral.

The court found the purchaser to be a bona fide arm’s‑length third party and held the negotiated purchase price reasonable given the business’s financial losses, receivership, and lack of competing offers.

The court granted disclosure from the receiver and permitted the husband to travel subject to security conditions due to support and costs arrears.

It further ordered the wife to remove the matrimonial home designation and authorized completion of the sale with proceeds to be paid into court pending resolution of the family claims.

A motion to change a final custody order from 2007 in which the maternal uncle was awarded custody of a child on consent of both parents.

The mother sought to regain custody after achieving sobriety and stability following a history of substance abuse.

The court found a material change in circumstances and awarded custody to the mother, finding that the uncle's inflexibility, controlling behavior, and unwillingness to facilitate the child's relationship with her mother and paternal family were contrary to the child's best interests, despite the uncle providing a stable home environment.

Following a family law motion concerning increased child and spousal support and disclosure, the court determined costs after written submissions.

The moving party had abandoned part of the motion after receiving late disclosure but remained partially successful given the necessity of the proceeding amid ongoing financial disarray between the parties.

The court considered earlier procedural steps and the parties’ conduct, noting that cooperation on some issues reduced litigation costs while delayed disclosure impeded settlement and adjudication.

Applying the general principles governing costs, the court found the moving party to be the successful litigant.

Costs were fixed in favour of the moving party in the amount claimed.

In a matrimonial proceeding involving a lodge business subject to a court‑appointed receivership, the respondent husband moved to remove the receiver, stay payments, and seek contempt findings against the applicant wife.

The wife cross‑applied for transfer of the property into her name and other interim relief including support.

The court held that removal of a receiver requires strong evidence of bad faith or misconduct and found no basis to discharge the receiver despite disputes over expenditures and alleged bias.

The court declined to transfer ownership of the property or make certain enforcement orders but granted modest interim spousal support and ordered financial disclosure.

Several ancillary requests, including contempt findings and other relief, were denied pending trial.

The applicant mother brought a motion for increased child support, spousal support, and disclosure.

After receiving late financial disclosure shortly before the hearing, the disclosure issue was abandoned, but the timing and adequacy of financial information complicated income determination.

The court found the respondent father underemployed and unable to provide reliable financial analysis from his construction business records.

On an interim basis, the court imputed income of approximately $80,000 and ordered increased interim spousal and child support, including additional support for the applicant’s medical expenses.

The decision emphasized the inadequacy of the financial record and the necessity of temporary orders pending fuller analysis.