Howard L. Shankman

This is a costs decision following the dismissal of a motion by Toronto Standard Condominium Corporation No. 2890 (TSCC 2890) for summary judgment to end its involvement in a construction lien action.

The court awarded substantial indemnity costs to the successful respondent, E-Tech Electrical Services Inc., finding that the motion lacked merit on its core issue regarding whether TSCC 2890 qualified as a "home buyer" under the Construction Act.

The court determined that the motion unreasonably delayed the conduct of the action and was brought without sufficient justification.

The respondent condominium corporation brought a motion for summary judgment seeking to discharge a construction lien registered by the applicant electrical contractor on the basis that the respondent was a "home buyer" under the Construction Act and therefore not subject to lien, and alternatively that the respondent was not an "owner" as defined in the Act.

The court found that the respondent was not a "home buyer" because the occupancy permit issued was partial and excluded common elements appurtenant to the units, which form part of the statutory definition of "home." The court also found a genuine issue requiring trial as to whether the lien attached to the respondent's interest based on the unclear evidence regarding whether the respondent requested the work or benefited from it.

The motion was denied in its entirety.

The defendants brought a motion for security for costs under Rule 56.01(1)(e) of the Rules of Civil Procedure, arguing the plaintiff's construction lien claims were frivolous and vexatious and that the plaintiff lacked sufficient assets in Ontario.

The court found the plaintiff's claim for an increased management fee was contradicted by its own communications and conduct, and its lien claim on a property completed eight years prior was without merit.

Finding the claims frivolous and vexatious, and noting the plaintiff's poor financial health and lack of proven assets, the court ordered the plaintiff to post $35,000 in security for costs in two installments and stayed the action pending payment.

The court considered costs submissions following a successful motion by the Defendants to set aside a default judgment.

The Defendants sought partial indemnity costs, while the Plaintiff sought substantial indemnity costs, including costs "thrown away" due to the default.

The court found no evidence of costs "thrown away" by the Plaintiff and noted the Defendants' lack of diligence in the underlying default.

Despite the Defendants' success on the motion to set aside default judgment, the court exercised its discretion under Rule 57.01(1) and ordered that each party bear their own costs, finding it fair and reasonable given the circumstances.

The defendants brought a motion to set aside a default judgment obtained by the plaintiff against the Estate of Paramjit Sahanan.

The court applied the factors from *Mountain View Farms Ltd. v. McQueen*, finding that while the defendants' excuse for default was not plausible, they acted promptly upon learning of the judgment and presented an arguable defence on the merits, particularly regarding the limitation period and the nature of the alleged debt.

The court also noted the plaintiff's long period of inaction.

The motion to set aside the default judgment was granted.

The plaintiffs sought to extend an interim injunction and a Certificate of Pending Litigation (CPL) against the defendants, alleging they were defrauded of $880,000 through an investment scheme involving real estate.

The court found a strong prima facie case of fraudulent misappropriation based on bank records showing funds diverted for personal use and no real estate purchases.

The court inferred a serious risk of asset dissipation and found irreparable harm would result without the injunction.

The balance of convenience favored granting the injunction and CPL.

The defendants' arguments regarding lack of fraud evidence, no risk of dissipation, and non-disclosure were rejected.

The appellants, a real estate agent and brokerage, appealed a trial judgment granting rescission of an agreement of purchase and sale and the return of a $50,000 deposit to the respondent purchaser.

The appellants had negligently misrepresented the size of the home as 2,000-2,500 square feet, when it was actually 1,450 square feet.

The appellants argued that the purchaser's physical inspection of the property displaced his reliance on their misrepresentation.

The Court of Appeal dismissed the appeal, holding that inspection does not absolutely displace reliance in law, and the trial judge correctly considered contextual factors including the substantial discrepancy in size and the purchaser's inexperience.

The appellant appealed a motion judge's order dismissing her motion to set aside a settlement regarding property in Highland Falls, New York and finding respondents in contempt.

The motion judge had granted the respondents' cross-motion for relief permitting implementation of the settlement terms.

The appellant raised four main grounds of appeal: (1) the motion judge erred in requiring leave to bring the motion; (2) the motion judge erred in rejecting her argument that the Final Order should be set aside due to environmental dumping issues; (3) the motion judge erred in approving a Deed Transfer that created an easement not contemplated by the Final Order; and (4) the motion judge erred in approving a Conservation Easement that was substantially more restrictive than agreed.

The Court of Appeal dismissed all grounds of appeal and upheld the motion judge's decision.

The appellants appealed an order dismissing their motion for leave to commence a derivative action under the Business Corporations Act (OBCA) as statute-barred.

The Court of Appeal determined it lacked jurisdiction to hear the appeal, as section 255 of the OBCA directs appeals of orders made under the Act to the Divisional Court.

The appeal was transferred to the Divisional Court.

The defendants moved for dismissal of the action under Rule 20, while the plaintiff opposed and sought judgment against the individual defendant and a newly incorporated entity, relying on the oppression remedy under the Ontario Business Corporations Act.

The court found that the individual defendant, after obtaining a default judgment against his initial corporation, ceased its commercial activity and transferred its goodwill and operations to a new corporation he solely directed, without satisfying the judgment.

The court applied the oppression remedy, concluding that the individual defendant abandoned the best interests of the previous corporation in favour of his own, thereby unfairly disregarding the plaintiff's interests as a creditor.

The appellant appealed an order dismissing his action under Rules 57.03(2) and 60.12 of the Rules of Civil Procedure for failing to pay outstanding costs awards.

The appellant argued that some costs were discharged by a previous order, raised historical grievances, and alleged bias against the motion judge.

The Court of Appeal found no merit in these arguments, noting the motion judge applied the correct test and appropriately exercised his discretion given the appellant offered no reason for non-payment.

The appeal was dismissed with costs.

The plaintiffs brought a motion to vary a timetable order, seeking leave to set the action down for trial despite unfulfilled mandatory mediation requirements and an extension of the trial set-down deadline.

The defendants opposed, alleging prejudice due to delay and missing documents related to a fraudulent conveyance claim.

The court found that both parties contributed to the delay in procedural steps, particularly regarding mediation and document exchange.

The motion was granted, varying the timetable to set new deadlines for mediation, setting the action down for trial, and for defendants to serve affidavits of documents, as no inordinate delay or actual prejudice to the defendants was established.

This is a costs ruling following a motion where the defendant Sona Construction Limited sought to reduce the amount of security posted with the court.

Sona partially succeeded in reducing the security but not to the extent requested.

Sona sought costs on a partial indemnity basis.

The plaintiff Selectra Inc. argued for no costs due to divided success and issues with the timing of concessions.

The court found the success was mixed and the matter of average complexity, ultimately making no award as to costs.

The moving party, a defendant contractor, brought a motion under section 44 of the Construction Lien Act to reduce the amount of security posted to vacate a claim for lien registered by the responding party subcontractor.

The responding party's lien included a substantial delay claim.

The court reviewed the disputed items, including site supervisor labour, notional equipment rentals, bonding costs, and project management fees, to determine if they were properly lienable.

Finding that certain items like notional rentals, bonding costs, and work not done were not lienable or lacked a reasonable prospect of success, the court ordered the security reduced from $1,372,552.36 to $858,385.78.

The defendants moved to dismiss the plaintiff's action after the plaintiff failed to comply with a prior court order requiring him to pay outstanding costs.

The plaintiff, a self-represented litigant with a history of obstreperous behaviour, had accumulated significant unpaid costs orders and failed to provide any justification for his non-compliance.

The court found that the plaintiff's continued failure to obey court orders constituted wilful defiance and an abuse of process.

The motion was granted, the action was dismissed, and further costs were awarded to the defendants.

Following a trial where the plaintiffs succeeded on liability for nuisance and trespass against a neighbouring trucking company, the Court of Appeal ordered that the plaintiffs recover their costs of the liability portion of the trial, with quantum to be determined by the trial judge.

The court considered the principles governing costs under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, including proportionality, indemnity, reasonable expectations of the losing party, complexity, and the hours reasonably expended.

The court rejected arguments that the plaintiffs’ trial preparation time was excessive and accepted that approximately 75% of the trial concerned liability rather than damages.

Applying partial indemnity rates and allocating costs proportionately, the court fixed the recoverable trial costs and apportioned joint and several liability for the trespass portion of the claim.

The appellant challenged orders dismissing his civil action arising from alleged new home construction defects and declaring him a vexatious litigant.

The Court of Appeal held that the motion judge misconstrued both the pleading and the statutory scheme under the Ontario New Home Warranties Plan Act by treating the action as a prohibited relitigation of matters already determined by the Tribunal.

Relying on the distinction between Tarion decisions, Tribunal determinations, and surviving civil warranty claims, the court concluded that the pleaded claims related to defects found warranted and were not fully barred by issue estoppel, res judicata, or abuse of process.

The vexatious litigant order was also set aside because it was premised on the erroneous view that the Superior Court action itself was vexatious.

Leave to amend was granted only to the extent previously contemplated for the appellant's own claims, and no costs of the appeal were ordered.

Two subcontractors asserted construction lien claims arising from demolition and abatement work performed on a condominium project.

The owner argued the liens had expired because a certificate of substantial performance had been published following a transition agreement that purported to terminate the original contract and trigger the lien period.

The court held the certificate of substantial performance was invalid because the statutory conditions for substantial performance under the Construction Lien Act were not met and the agreement was inconsistent with the Act’s holdback regime.

The court further held the equipment supplier’s lien was preserved in time, as its rental contract had not been terminated and the supplier had not received the contractual notice required to end supply.

Both lien claims therefore remained valid and recoverable against the statutory holdback.

The appellant challenged a summary judgment determination in a real estate commission dispute, arguing the motion judge improperly exercised the expanded fact-finding powers under revised Rule 20.

The Court of Appeal held that, having regard to the language of the rule and the Supreme Court of Canada's guidance in Hryniak, the motion judge did not err in making the findings necessary to determine the claim.

The central disputed finding, whether the broker showed the property to the purchaser, was characterized as a purely factual issue attracting strong appellate deference.

The appeal was dismissed with costs.

Following the defendants’ complete success on a summary judgment motion and related application, the court determined the appropriate costs payable by the plaintiff.

The defendant warranty corporation sought substantial indemnity costs but provided no justification, and the court instead awarded partial indemnity costs.

The court reviewed the defendants’ bill of costs and reduced certain counsel fees while allowing reasonable disbursements.

Additional limited costs were permitted for preliminary legal assistance performed by a lawyer who was not solicitor of record, but no costs were allowed for work related to a third party claim.

The plaintiff was ordered to pay specified partial indemnity costs to the successful defendants.