G. D. Hersen

Metrolinx, the owner of a construction project, moved to post the agreed basic and notice holdback amounts into court to vacate several subtrade liens and have the actions against it dismissed.

The subtrades consented to the posting but argued Metrolinx should also be required to post security for prejudgment interest and pay their costs.

The Master held that holdback is a retention obligation, not a payment obligation, and therefore does not attract prejudgment interest under the Courts of Justice Act.

However, the Master awarded partial indemnity costs to the subtrades, finding that Metrolinx unnecessarily lengthened the proceedings by aggressively defending the entirety of the subtrade claims instead of posting the holdback early in the litigation.

The plaintiff, Unimac, brought a motion to vary previous orders requiring it to post security for costs in favour of the defendant, Metrolinx.

Unimac argued the orders were based on false and misleading evidence regarding the location of a related action, and that new evidence undermined the credibility of a key affidavit.

The Master dismissed the motion, finding that the location of the related action was not material to the original decision and that Unimac could have discovered the true location with due diligence.

The Master also found that the new evidence would not have had an important influence on the original decision.

Following a successful motion for security for costs, the moving party sought partial indemnity costs exceeding $51,000.

The responding party argued that no costs should be awarded or that costs should be reserved pending judicial review of the motion decision.

The court assessed the relevant Rule 57.01 factors including partial success on the motion, the complexity of the issues, the parties’ conduct, and the reasonableness of the time claimed in the costs outline.

While the moving party was the successful party, some claimed time was excessive and the security order represented only about 65% of what had been sought.

The court fixed partial indemnity costs at $25,000 inclusive of tax.

The defendant, Metrolinx, brought a motion for security for costs against the plaintiff, Unimac, in a construction lien action.

Metrolinx argued that Unimac had commenced multiple proceedings for the same relief and had insufficient assets in Ontario to pay costs.

The Master granted leave under the Construction Lien Act to bring the motion, finding that Metrolinx met its initial onus on both grounds.

Unimac failed to prove it had sufficient assets or that the multiplicity of proceedings was justified.

The Master ordered Unimac to post $264,712.73 as security for costs, discounting the requested amount to account for Metrolinx's counterclaim.