D.H. Sandler

The defendant brought a motion to dismiss the plaintiff's construction lien action for failure to pay a previous costs award.

The plaintiff brought a cross-motion to stay its own action and compel the defendant to participate in arbitration pursuant to their contract.

The court held that a master does not have jurisdiction to appoint an arbitrator under section 10(1) of the Arbitration Act, as that requires an application to a judge.

The court exercised its discretion under section 47 of the Construction Lien Act to dismiss the remaining contract action, noting it served no purpose after the lien was discharged.

The court also dismissed the action based on the plaintiff's failure to pay the prior costs award.

Following reasons disposing of a motion in a construction lien action, the court was required to quantify the costs payable by the unsuccessful lien claimant.

The moving parties sought partial indemnity costs after succeeding on a motion involving issues including whether the lien should be discharged under s. 47 of the Construction Lien Act.

Applying s. 86(1) of the Act and the factors in Rule 57.01 of the Rules of Civil Procedure, the court assessed the reasonableness of the claimed fees, disbursements, and settlement offer.

The court fixed costs at a reduced amount and declined to order personal liability for costs against individuals associated with the plaintiff corporation because the evidentiary record was insufficient at this stage to meet the legal test for non‑party costs.

The defendant homeowners brought a motion to discharge a construction lien and dismiss the action after the plaintiff's representative failed to meaningfully participate in two scheduled cross-examinations.

The court found significant issues regarding whether the plaintiff corporation was the actual contracting party, as the homeowners believed they contracted with an individual.

Given the abortive cross-examinations and the procedural complexities that would arise under the Construction Lien Act to resolve the corporate identity and counterclaim issues, the court exercised its discretion under s. 47(1) to discharge the lien and dismiss the entire action, without prejudice to the parties starting fresh non-lien actions.

Costs thrown away were awarded to the defendants.