Gregory N. Hemsworth

Mortgagees brought a motion under ss. 44(2) and 78 of the Construction Lien Act seeking to vacate five construction liens from title to condominium units by posting alternative security.

The development consisted of 26 commercial condominium units, most of which had already been sold, while five units remained unsold.

Lien claimants argued that security equal to nearly the full amount of the liens should be posted in cash from sale proceeds.

The court held that the mortgagees’ proposal—posting partial cash security while leaving the liens on title to the remaining unsold units—provided more than adequate combined land and cash security and better preserved potential equity by reducing mortgage debt and accumulating interest.

The court ordered the liens vacated from the sold units upon posting security while remaining on the unsold units pending further order.

Following a construction lien trial involving landscaping services, the successful plaintiff sought costs exceeding $100,000 based largely on an offer to settle that it had bettered at trial.

The court considered Rule 49.10 of the Rules of Civil Procedure and the principles of fairness, reasonableness, and proportionality governing costs awards.

Although the plaintiff obtained judgment and had made a favourable settlement offer, the court found the claimed hours and total costs excessive relative to the amount recovered.

Taking into account the defendant’s unsuccessful counterclaim and litigation conduct but emphasizing proportionality, the court fixed costs at a reduced amount.

The moving party sought an order requiring production of a solicitor’s reporting letter and account relating to the purchase of a condominium allegedly funded through misappropriated construction trust funds.

The responding parties resisted production on the basis of solicitor-client privilege.

The court held that reporting letters and solicitor accounts arising from real estate transactions are generally privileged as communications directly related to legal advice and services.

The court further held that allegations of fraud alone are insufficient to displace privilege without a prima facie evidentiary basis.

As the moving party failed to establish a prima facie case of fraud, the privilege remained intact and production was refused.

Following dismissal of the plaintiff’s claim after trial under the Simplified Procedure Rules, the successful defendant sought costs on a partial indemnity basis.

The plaintiff acknowledged entitlement to costs but argued for a reduced amount.

Applying the factors under Rule 57.01 of the Rules of Civil Procedure and relevant cost principles, the court determined that a reduced all-inclusive costs award was fair and reasonable.

The court also granted additional costs against a defendant by counterclaim who had been noted in default in connection with the counterclaim judgment.