Brendan Bowles

The defendants brought motions under section 86(1)(b)(i) of the old Construction Act seeking costs against the plaintiff's former law firm, arguing the firm participated in preserving and perfecting a baseless construction lien.

The court held that liability under this section requires subjective actual knowledge, recklessness, or willful blindness regarding the baselessness of the lien, rather than mere negligence.

Finding no evidence that the law firm possessed such knowledge or acted with willful blindness at the time of preservation and perfection, the court dismissed the motions.

The plaintiff sued its former lawyer's estate and professional corporation for negligence and breach of contract after the lawyer allowed a construction lien to expire by failing to set the action down for trial within two years.

The defendants conceded the breach of the standard of care but disputed causation and damages, arguing the plaintiff failed to mitigate by not enforcing a related judgment and that the property lacked sufficient equity.

The court found the plaintiff did not act unreasonably in relying on the lawyer's advice that the lien was valid.

Assessing the complex evidence on the contaminated property's retrospective value, the court determined there was equity in the property and fixed damages at $472,000.

Following a 19-day construction lien trial, a procedural dispute arose regarding closing submissions.

The defendant filed a surrebuttal that raised a new defence under the Limitations Act, 2002, and implicitly alleged professional negligence against the plaintiff's counsel.

The plaintiff requested a right of reply.

The court granted the plaintiff a limited right of reply, finding that trial fairness dictated the plaintiff must have an opportunity to respond to a newly raised, unpleaded limitations defence.

Following the dismissal of Multiplex's motions for a sealing order and pleading amendments, and the granting of its motion to examine a non-party under Rule 31.10, the court determined the costs of the motions.

The court awarded PGH $11,000 in partial indemnity costs for the dismissed motions, finding Multiplex's conduct was not reprehensible or wholly devoid of merit to justify substantial indemnity costs.

The court deferred the costs of the successful Rule 31.10 motion, ruling that the non-party's costs would be determined if he seeks reimbursement, and PGH's liability for Multiplex's costs would be determined in the cause of the underlying fraud allegations.

The plaintiff brought a motion to quash the defendant's appeal to the Divisional Court from an order dismissing the defendant's motion to discharge a construction lien.

The plaintiff argued the appeal was barred by s. 71(3) of the Construction Lien Act because the underlying order was interlocutory.

The court dismissed the motion to quash, finding that the underlying order was final because it deprived the defendant of a substantive defence that would have ended the lien action and allowed for the return of posted security.