Harvey Martin Mandel

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.