Harjaap Mann

Following dismissal of a motion seeking numerous forms of relief in a construction lien dispute, several successful parties sought costs against the moving owners.

The court considered the presumption that successful litigants receive costs and the factors under Rule 57.01(1) of the Rules of Civil Procedure.

The court rejected arguments that alleged misconduct by the successful parties disentitled them to costs and held that the motion was largely unsuccessful and unnecessary in several respects.

Full recovery costs were awarded to one contractor whose claim should never have been contested, while partial indemnity costs were granted to the contractor and subcontractors in reduced amounts to remain fair and proportionate.

The moving parties, owners of a motel, brought a motion under s. 47(1) of the Construction Lien Act to discharge or vacate several construction liens registered by the contractor and subcontractors.

The owners argued the liens should be discharged or, alternatively, vacated upon posting $100,000 as security.

The court dismissed the motion, finding that a motion to discharge a lien is akin to a summary judgment motion and there were numerous genuine issues of material fact requiring a trial, including responsibility for delays, scope of the contract, and quality of work.

The court also declined to arbitrarily reduce the security amount required to vacate the liens from the $489,000 claimed.

Following a successful motion to set aside a registrar’s order dismissing the action for delay, the court determined the appropriate costs award.

The successful moving party sought full costs of $3,647 plus an additional punitive amount, alleging the opposing party’s conduct caused the dismissal and necessitated the motion.

The responding party argued the amount sought was unreasonable and proposed a substantially lower costs award.

The court accepted that the responding party’s conduct could be considered but declined to award the full amount or punitive costs.

Costs of $3,000 plus HST were ordered payable within 30 days.

The plaintiff moved to set aside a registrar’s order dismissing the action for delay under Rule 48 of the Rules of Civil Procedure.

The parties had agreed that the defendant would file the trial record and set the action down for trial by a court‑ordered deadline, but the defendant failed to file the trial record, resulting in the dismissal.

The plaintiff promptly brought a motion after learning of the dismissal and explained that the failure arose from the defendant’s omission.

The court held that the plaintiff had provided an acceptable explanation for the delay and that the defendant could not rely on its own failure to comply with the timetable.

Given admissions made by the defendant during discovery regarding the essential elements of the claim, the court found no non‑compensable prejudice and set aside the dismissal order.

The plaintiff brought a motion under Rules 25.06, 25.10, and 25.11 of the Rules of Civil Procedure seeking to strike portions of a defendant’s Statement of Defence in a civil fraud action alleging misappropriation of corporate funds.

The court considered whether several pleaded allegations were irrelevant, speculative, inflammatory, or unsupported by material facts.

Some impugned paragraphs were allowed to remain because they were relevant to the defendant’s theory that he acted under instructions from a corporate officer.

However, other allegations containing speculation, unsupported assertions, or inflammatory descriptive terms were struck, though the defendant was granted leave to amend to properly plead material facts and comply with pleading rules, including requirements for pleading fraud with particulars.