Jonathan Frustaglio

Following a trial in a construction dispute, the court issued an addendum correcting a tabulation error, resulting in an increased damages award of $179,681.59 to the plaintiff.

On the issue of costs, the court found the defendant was substantially successful on liability but reduced its costs recovery because it failed to prove the majority of its claimed damages.

The court rejected the defendant's argument for full indemnity costs under the subcontract, awarding $415,000 in partial indemnity costs.

The plaintiff was awarded prejudgment interest at 2% per annum from the date the project was substantially performed.

The moving parties, a developer and a construction manager, brought a motion under section 44(5) of the Construction Act to reduce the security posted to vacate claims for lien registered by the responding subcontractor.

The moving parties argued the subcontractor was not entitled to cost escalations due to lack of proper notice, a prior promise not to pursue such costs, and an inability to prove quantum.

The court dismissed the motion, finding that the moving parties failed to prove on a balance of probabilities that there was no reasonable basis for the lien amounts claimed.

The court held that the adequacy of notice, the binding nature of the promise, and the quantum of the claim all presented genuine issues requiring a trial.