H. 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 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.