Brian A. Babcock

Following dismissal of a motion under s. 47 of the Construction Lien Act seeking to discharge a construction lien as filed out of time, the court determined the appropriate costs award.

The successful lien claimant sought substantial indemnity costs alleging the motion was tactical and should have been abandoned after cross‑examination evidence emerged.

The court held there was no unreasonable conduct or bad faith justifying substantial indemnity and applied the general discretion under the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure.

Considering reasonableness, complexity, the amount in issue, and duplication of lawyer time, the court reduced the claimed partial indemnity fees.

Costs were fixed at $8,000 plus HST and disbursements, payable within 30 days.

The defendant subcontractor brought a motion under s. 47 of the Construction Lien Act to discharge the plaintiff's claim for lien, arguing it was filed out of time.

The plaintiff had stopped providing hoisting services to the defendant due to unpaid arrears but continued providing services on the project after the general contractor agreed to pay for them directly.

The court found a genuine issue for trial regarding whether the subsequent services were provided under a continuing contract with the defendant or a new contract with the general contractor.

The motion was dismissed.