Charles L. Mackenzie Q.C.

Following a successful urgent motion to compel the sale of commercial real estate, the court determined the costs payable by the unsuccessful co-owner who opposed the sale.

The court considered the factors under Rule 57.01(1) and the principle of proportionality.

Costs were awarded to the moving parties in the amount of $6,000 and to the supporting respondent in the amount of $3,350, payable by the opposing respondent.

The plaintiff brought a summary judgment motion arising from an unpaid construction subcontract for fire suppression work, seeking principal, contractual interest, collection costs, and personal liability against corporate officers for breach of trust.

The court held the corporate defendant was bound by the written commercial contract, including a 2% per month compounded interest clause and recovery of collection costs, and distinguished the authorities concerning unsigned or hurried standard-form agreements.

Applying the statutory trust provisions of the Construction Lien Act, the court found the contractor had received full payment on the project, failed to account for trust funds, and breached the trust owed to the subcontractor.

The officers knew or ought reasonably to have known of the breach and were held jointly and severally liable.

Additional post-February 5, 2015 costs of $10,000 were fixed in the plaintiff's favour.