Andrew Gurlesky

Following the dismissal of the action against it, the defendant Covanta sought partial indemnity costs of $62,323.43 plus incidental costs of $312,887.85.

The plaintiff argued the amounts were excessive and that incidental costs were effectively a claim for damages.

The court agreed with the plaintiff, finding the incidental costs inappropriate for a summary costs motion and the legal fees excessive compared to the plaintiff's own costs outline.

The court fixed costs at $40,000 payable by the plaintiff to Covanta.

The moving party, an owner/contractor on a construction project, brought a motion under section 47(1) of the Construction Lien Act to dismiss the plaintiff's action against it.

The plaintiff's construction lien had previously been vacated by the posting of security by the general contractor.

The court held that once a lien is vacated by the posting of security, the owner is no longer a proper party to the lien action as there is no privity of contract.

Furthermore, the court applied binding appellate authority to hold that claims for unjust enrichment and quantum meruit cannot be joined in a lien action under section 55(1) of the Act.

The motion was granted and the action against the moving party was dismissed.

The applicant, Covanta, brought an application to set aside an arbitrator's decision to join two subcontractors to an ongoing arbitration between Covanta and the general contractor.

The arbitrator had joined the subcontractors under Article 17(5) of the UNCITRAL Arbitration Rules.

Covanta argued the arbitrator exceeded his jurisdiction because the subcontractors were not parties to the arbitration agreement.

The Superior Court of Justice held that the arbitrator's decision was jurisdictional in nature and subject to review on a standard of correctness.

The Court found that the subcontractors were not parties to the arbitration agreement, as the subcontract did not properly incorporate the arbitration clause by reference.

The Court set aside the arbitrator's ruling and awarded costs of $50,000 to the applicant.