B. Nicholson

Following a construction lien trial in which the contractor substantially succeeded and the homeowners’ counterclaim largely failed, the court determined the appropriate costs award.

The contractor had recovered most of its lien claim while the homeowners succeeded only minimally on their counterclaim.

The court considered factors under Rule 57.01(1) and the discretionary costs authority under the Courts of Justice Act and Construction Lien Act.

Due to repeated non‑compliance with court orders, failure to attend pre‑trial events, and trial by ambush conduct by the homeowners, the court awarded a combination of partial indemnity and substantial indemnity costs.

Total costs were fixed at $12,235.91 inclusive of HST, payable jointly and severally by the homeowners.

A contractor commenced an action to recover the unpaid balance under a construction contract for excavation and foundation work at a residential property.

The owners defended and counterclaimed alleging deficient and incomplete work, asserting a lower contract price and claiming damages for completion and repair costs.

The court found that the parties entered into a verbal agreement whose terms were reflected in an unexecuted written contract prepared contemporaneously by the contractor.

The court determined that the contractor had not completed certain above‑ground block walls but rejected most alleged deficiencies due to lack of proof.

After deducting proven completion costs, judgment was granted for the contractor for the remaining contract balance.