B.D. Moldaver

Following a construction lien trial where the plaintiff subcontractor obtained judgment against the general contractor, the court determined the costs of the action.

The issues included whether success was divided, the appropriate scale of costs following a rejected offer to settle under Rule 49.10 of the Rules of Civil Procedure, and whether the defendant could recover costs associated with the owner’s legal expenses and the removal of a lien from title.

The court held that the plaintiff was the more successful party and had beaten its pre‑trial offer, entitling it to partial indemnity costs up to the offer date and substantial indemnity thereafter.

However, because the plaintiff unnecessarily kept the owner in the action after the lien was vacated, the court allowed a set‑off representing the reasonable portion of the owner’s legal costs.

Final costs were fixed in favour of the plaintiff after deductions.

Following a trial in which the defendant was entirely successful, the court determined the issue of costs.

The plaintiff had failed to obtain any judgment and had not accepted a clear settlement offer prior to trial.

The court considered proportionality, the relatively straightforward nature of the matter, and the limited documentary record and discovery conducted.

Substantial indemnity costs were declined because the plaintiff had not unnecessarily prolonged the proceeding and could not reasonably have expected exposure to the level of costs claimed.

The defendant was awarded partial indemnity costs fixed at $16,500 inclusive of disbursements and HST.