Simeon Posen

In this construction lien costs reference following trial, the successful plaintiff sought more than $298,000 in costs, including substantial indemnity costs after an offer to settle and extensive expert and transcript expenses.

The court held that no settlement offer engaged Rule 49 presumptions in the plaintiff’s favour and, in any event, substantial indemnity costs would have been inappropriate because the plaintiff was unsuccessful on a major quid pro quo claim that materially increased the length and expense of the litigation.

Applying proportionality, the least expensive course principle under the Construction Lien Act, and the general costs factors under the Rules, the court substantially reduced the claimed legal fees and expert disbursements.

Costs were fixed at $137,098.53 inclusive of HST, payable by the defendant to the plaintiff.

In a construction lien action arising from a condominium renovation, the court held that the parties' project proposal was void for uncertainty because there was no meeting of the minds on price, scope of work, or completion timing.

The contractor nevertheless established entitlement to restitutionary quantum meruit recovery because the owner requested, approved, and received the benefit of the services and materials supplied.

The court rejected the contractor's attempt to add a 36 percent markup for profit and overhead, finding no contractual basis and no evidence of reasonable market value.

The owner's counterclaims for delay, most alleged deficiencies, and permit-related damages failed, save for a reduction reflecting the reasonable cost to retrofit a stair railing that did not comply with code.

Judgment was granted for the contractor in the amount of $57,657.31 and the lien was held to have been preserved and perfected in time.