Jonathan Goode

The plaintiff, Baeumler Quality Construction Inc., sought costs after successfully defending a motion by the defendants, the Pirraglias, to strike a construction lien.

The court, having dismissed the Pirraglias' motion, was tasked with determining the quantum of costs.

Baeumler requested $23,002.10 on a partial indemnity scale, while the Pirraglias proposed $7,500.

Considering factors such as proportionality, the stakes, scope, and reasonableness, the court awarded Baeumler $15,000 in costs, noting that the requested amount was too high for a one-issue motion primarily based on documentary evidence, especially given the principal claim was for $34,000.

The defendants brought a motion seeking a declaration that the plaintiff's construction lien had expired before registration and an order for its discharge.

The defendants argued the contract was abandoned on July 27, 2016, more than 45 days before the lien was registered on September 23, 2016.

The court reviewed the correspondence between the parties and found insufficient evidence to conclude the contract was unequivocally terminated or abandoned on that date.

The motion was dismissed as the defendants failed to prove there was no genuine issue for trial regarding the date of abandonment.

The defendants moved to set aside a default judgment, arguing that their former counsel's negligence, including undisclosed Law Society suspensions and failure to attend to the action, led to the default.

The plaintiffs contended the defendants were aware or should have been aware of their lawyer's issues and lacked an arguable defence.

The court applied the Chitel test, finding the motion was brought without delay, the default was adequately explained by counsel's negligence, and the defendants presented an arguable defence regarding the renovation contract.

The court emphasized that clients should not be irrevocably jeopardized by counsel's neglect and that allowing the judgment to stand would bring the administration of justice into disrepute.

The default judgment and a prior order striking the defence were set aside, and garnished funds were ordered returned as no exceptional circumstances for a freezing order were shown.

Following a successful motion for security for costs, the moving party sought partial indemnity costs exceeding $51,000.

The responding party argued that no costs should be awarded or that costs should be reserved pending judicial review of the motion decision.

The court assessed the relevant Rule 57.01 factors including partial success on the motion, the complexity of the issues, the parties’ conduct, and the reasonableness of the time claimed in the costs outline.

While the moving party was the successful party, some claimed time was excessive and the security order represented only about 65% of what had been sought.

The court fixed partial indemnity costs at $25,000 inclusive of tax.

The defendant, Metrolinx, brought a motion for security for costs against the plaintiff, Unimac, in a construction lien action.

Metrolinx argued that Unimac had commenced multiple proceedings for the same relief and had insufficient assets in Ontario to pay costs.

The Master granted leave under the Construction Lien Act to bring the motion, finding that Metrolinx met its initial onus on both grounds.

Unimac failed to prove it had sufficient assets or that the multiplicity of proceedings was justified.

The Master ordered Unimac to post $264,712.73 as security for costs, discounting the requested amount to account for Metrolinx's counterclaim.

A subcontractor brought a simplified procedure summary trial seeking payment for renovation work performed on two public construction projects and claimed against a labour and material payment bond issued by the defendant insurer.

With respect to the first project, the court found the subcontractor proved the debt owed by the general contractor but failed to comply with the notice and timing conditions precedent required to enforce the labour and material bond against the surety.

As a result, the debt was recognized but not enforceable against the insurer.

For the second project, the court found the subcontractor properly complied with the bond notice requirements and proved the amount owing, while the defendant failed to produce reliable evidence of deficiencies or rectification costs.

Judgment was therefore granted against the insurer for the second project only.

The plaintiff brought a pre-trial motion seeking to amend pleadings in two consolidated construction-related actions originally commenced in Small Claims Court.

The requested amendments included increasing the monetary claims above the former Small Claims Court jurisdictional limit, correcting a bond number, asserting rights under a labour and material bond, and adding claims for relief from forfeiture under the Courts of Justice Act and the Insurance Act.

The court held that increasing the quantum of damages already claimed did not constitute a new cause of action and allowed the amendments raising the amounts claimed.

However, the court refused amendments introducing a claim under a labour and material bond where the original pleadings relied on an incorrect performance bond, finding this would introduce a new and statute-barred claim causing presumed prejudice.

The court also rejected the proposed amendments seeking relief from forfeiture because the plaintiff had failed to comply with condition precedent notice requirements and its conduct in delaying the amendment was unreasonable.

Following dismissal of a motion for partial summary judgment, the successful defendant sought costs on a partial indemnity basis.

The plaintiff opposed costs or alternatively argued that any award should be proportional given the simplified procedure context and the modest amount in issue.

The court applied the general rule that costs follow the event and considered proportionality and Rule 57.01 of the Rules of Civil Procedure.

The court reduced the amount sought and awarded a reasonable partial indemnity costs amount.

The plaintiff subcontractor brought a motion for partial summary judgment against a surety insurer under labour and material payment bonds after obtaining default judgments against the general contractor in Small Claims Court.

The insurer opposed the motion, arguing that multiple factual issues required determination at trial, including whether the bonds provided coverage, whether notice requirements were met, and whether limitation defences applied.

Applying the post‑amendment summary judgment framework and the Court of Appeal’s guidance in Combined Air Mechanical Services Inc. v. Flesch, the court held that the competing affidavits revealed significant factual disputes requiring credibility assessments.

The court concluded that the “full appreciation test” could not be satisfied on the motion record.

The motion for partial summary judgment was dismissed and the matter was directed to proceed by summary trial under Rule 76.