Brian J. Decaire

Following a successful trial concerning the interpretation of a registered easement agreement, the successful applicant sought costs on a substantial indemnity basis exceeding $98,000.

The respondents argued no costs should be awarded, relying on an arbitration clause in the agreement and a prior consent order, and alternatively sought reduced partial indemnity costs.

The court held the arbitration clause had effectively been waived by the parties’ consent to litigate the dispute and affirmed the principle that a successful party is generally entitled to costs.

Applying Rule 49.10(1) of the Rules of Civil Procedure and considering Rule 57.01 factors, the court awarded partial indemnity costs to the date of the offer to settle and substantial indemnity costs thereafter.

A global costs award of $85,000 inclusive of disbursements and taxes was ordered.

The applicant sought declaratory and injunctive relief concerning the scope of a registered easement over her property used as part of a shared laneway servicing several subdivided residential lots.

The respondents claimed the easement allowed them to excavate the applicant’s land, construct a driveway to their garage, and park vehicles there.

The court interpreted the express easement agreement governing the subdivision and held that the right of way was limited to vehicular passage along the common lane and the installation and maintenance of service lines.

Ancillary rights could be implied only where necessary for the use of the easement, not merely convenient.

The respondents’ driveway construction, grading alterations, and parking exceeded the scope of the easement and interfered with the servient tenement.

Declaratory relief, restoration orders, and a permanent injunction were granted.

Following a trial under the Construction Lien Act involving a commercial renovation contract dispute, the court had awarded judgment to the plaintiff contractor for the net unpaid contract balance after accounting for deficiencies.

The present decision addressed the issue of costs.

The court rejected the defendants’ submission that success was divided and held the plaintiff was the successful party because it obtained a monetary judgment.

Costs were awarded on a partial indemnity basis, but the court reduced the claimed counsel fees and expert disbursements to ensure proportionality with the modest amount in dispute and the relatively low to moderate complexity of the case.

A contractor commenced a construction lien action seeking payment for renovation and rehabilitation work performed on a 14‑unit residential building.

The owners disputed entitlement to several claimed extras and asserted set‑offs for incomplete and deficient work.

The court interpreted the contract documents collectively, finding certain alleged extras fell within the original contractual scope while others were compensable, including electrical work allowed on a quantum meruit basis and limited delay costs.

The court held the owners wrongfully terminated the contract prior to completion.

Damages were calculated as the contract price plus allowable extras, less completion costs and proven deficiencies, resulting in judgment for the contractor.

A subcontractor lien claimant, Swan & Associates Inc., moved for partial summary judgment declaring its claim for lien was timely.

The owner, the City of Guelph, opposed the motion, arguing the lien was registered out of time and that the recent work was for repairing deficiencies rather than contract work.

The court found that the intermittent architectural finishing work performed by the subcontractor was contract work, not deficiency work.

The court concluded on a balance of probabilities that the subcontractor's last date of supply was within the 45-day statutory period.

The motion for partial summary judgment was granted.