Jeffrey Aaron Armel

Following a successful construction lien trial in which the plaintiff recovered unpaid accounts and defeated the defendant’s set‑off and counterclaim, the court determined costs of the actions and reference under the Construction Lien Act.

The litigation had become complex due largely to the defendant’s conduct, including repeated procedural defaults, unsuccessful motions and appeals, and failure to comply with court orders, which significantly lengthened the proceeding.

The court considered the factors under Rule 57.01, the plaintiff’s Rule 49 offer to settle, proportionality, and the principle of indemnification.

Finding the defendant overwhelmingly responsible for the escalation of costs and noting that the plaintiff had recovered more than double its settlement offer, the court awarded partial indemnity costs up to the offer date and substantial indemnity costs thereafter.

Costs of $78,107.90 were fixed in favour of the plaintiff.

The moving party sought an order declaring that its construction lien was validly sheltering under other perfected liens pursuant to s. 36(4) of the Construction Lien Act, and also sought enforcement of an alleged settlement.

The responding landowner argued that insufficient evidence established that the work performed by the sheltering lien claimants related to the “same improvement.” The court held that the moving party’s evidence, including an affidavit stating that it supervised contractors working on the same renovation and construction project, established the required nexus between the work.

The lien was therefore found to be validly sheltered.

However, the court declined to enforce the alleged settlement due to insufficient documentary evidence of agreed settlement terms.

The plaintiff elevator maintenance company registered ten construction liens against five apartment buildings owned by the defendants for unpaid maintenance and repair services totaling $122,810.30.

The defendants claimed a set-off of $75,000, alleging the plaintiff failed to properly maintain the elevators, necessitating upgrades by a new contractor.

The court found the plaintiff proved its accounts and the defendants failed to prove any breach of contract by the plaintiff.

The court upheld the liens, including those for advance payments, and dismissed the defendants' set-off claim.

The court also dismissed a mid-trial recusal motion brought by the defendants.

The appellant appealed a decision of a Master in a construction lien matter.

The central issue was whether a subsequent project constituted a new contract or an amendment to an earlier contract within the meaning of section 1(1) of the Construction Lien Act.

The Divisional Court held that this determination is a pure question of fact.

Finding no demonstrated error in principle and noting that there was evidence to support the Master's conclusion that it was a new contract, the court dismissed the appeal and awarded costs to the respondent.