Harvey Martin Mandel

Following a trial where the plaintiff was awarded judgment for $86,244.38 on a construction lien claim, the court determined the issue of costs.

The plaintiff sought partial indemnity costs of $69,701.77, while the defendant, despite being unsuccessful, sought substantial indemnity costs arguing he was the more successful party on the major trial issues.

The court rejected the defendant's argument, finding no basis to award costs to an unsuccessful defendant.

Applying the factors under section 86 of the Construction Lien Act and Rule 57.01, the court awarded the plaintiff $38,000 in costs, less a $3,000 set-off for a prior motion, resulting in a net costs award of $35,000 to the plaintiff.

The plaintiff contractor registered a construction lien for unpaid services and materials relating to the construction of a new residential home.

The defendant owner disputed the claim, arguing that the contractor abandoned the project, overcharged for extras that were part of the base contract, and left deficient work.

The court interpreted the fixed-price contract to determine the base scope of work, finding that some claimed extras were included in the base price while others were compensable.

After accounting for proven payments, loan credits, and a minor set-off for incomplete work, the court found the owner breached the contract by failing to pay.

The contractor was awarded a valid lien and judgment for $86,244.38 plus pre-judgment interest.

The defendants (landlord) brought a motion for an order requiring the plaintiff (tenant) to pay alleged rent arrears and future rent into court.

The plaintiff brought a cross-motion for declaratory relief regarding the commercial lease and requested an adjournment to reconstitute her cross-motion as a motion for summary judgment.

The court granted the adjournment but ordered the plaintiff to pay $1,250 per month into court pending the hearing of the motions, noting that the fundamental obligation to pay rent under the lease must be maintained.

The defendant brought a motion to set aside a default judgment obtained in an action arising from a short-term mortgage loan.

Applying the test from HSBC Securities (Canada) Inc. v. Firestar Capital Management Corp., the court considered whether the motion was brought without delay, whether the default was adequately explained, and whether the defendant had an arguable defence on the merits.

The court found the defendant acted promptly and reasonably explained the default.

Most proposed defences lacked merit, but a genuine issue for trial existed regarding undisclosed deductions from the mortgage funds totalling $2,498.25 that could support a defence of duress or unconscionability.

The default judgment was therefore partially set aside only with respect to that amount and associated interest.

The plaintiff brought a motion seeking a finding of civil contempt against the defendants for alleged non-compliance with a prior court order requiring certain construction and repair work at leased premises.

Applying the established tripartite test for contempt—requiring a clear order, deliberate and wilful breach, and proof beyond a reasonable doubt—the court held that although the order was clear, the evidence did not establish deliberate or wilful non-compliance.

Correspondence between the parties showed the defendants attempting to schedule and perform the ordered work while encountering obstacles and additional demands from the plaintiff outside the scope of the order.

The contempt motion was dismissed.

The court nevertheless issued further directions and timelines to complete outstanding work, including water hookup and construction of a second bathroom.

Following a successful motion fixing the statutory construction lien holdback amount under the Construction Lien Act, the court determined the appropriate costs payable to lien claimants.

The successful parties sought substantial indemnity costs based on a late offer to settle and alleged litigation conduct by the opposing mortgagee representative.

The court held that the offer did not trigger Rule 49 consequences because it was served fewer than seven days before the hearing, and there were no exceptional circumstances justifying costs beyond the usual partial indemnity scale.

Costs were therefore awarded primarily to the two counsel who carried the motion on behalf of all lien claimants, with modest costs granted to several additional claimants who attended but did not argue the motion.

The plaintiff sought an order setting aside two certificates of pending litigation registered against title to residential property in Vaughan to allow completion of a pending sale.

The court found that the certificates had been obtained on the basis of affidavit evidence that was misleading and false in material respects, including failure to disclose that the registered owner had died.

The court held that the plaintiff should not benefit from such misrepresentations but permitted the certificates to be vacated only on strict conditions.

The plaintiff was required to pay into court an amount representing the difference between the sale proceeds and the court‑determined fair market value of the property, less specified deductions.

If the payment was not made, the certificates would remain and the court would consider appointing a receiver.

The plaintiff and other lien claimants sought a determination of the basic holdback amount under the Construction Lien Act following the sale of a partially completed retirement home project by the defendant mortgagee.

The mortgagee argued the holdback was reduced by payments made to sub-trades during construction.

The court found that the owner violated section 25 of the Act by releasing holdback funds before certificates of completion were issued, and that such a breach could not be cured retroactively.

The court fixed the basic holdback at the full 10% of the value of services and materials provided, plus applicable GST.

The appellant asked the Court of Appeal to reconsider its prior jurisprudence on tortious acts by employees of corporations.

The court declined to revisit the policy considerations addressed in earlier appellate authorities and held that any reconsideration should be undertaken by the Supreme Court of Canada.

The appeal was therefore dismissed with costs.