J.S.G. MacDonald

Following a trial where the plaintiff was awarded judgment for $86,244.38 on a construction lien claim, the court determined the issue of costs.

The plaintiff sought partial indemnity costs of $69,701.77, while the defendant, despite being unsuccessful, sought substantial indemnity costs arguing he was the more successful party on the major trial issues.

The court rejected the defendant's argument, finding no basis to award costs to an unsuccessful defendant.

Applying the factors under section 86 of the Construction Lien Act and Rule 57.01, the court awarded the plaintiff $38,000 in costs, less a $3,000 set-off for a prior motion, resulting in a net costs award of $35,000 to the plaintiff.

The plaintiff contractor registered a construction lien for unpaid services and materials relating to the construction of a new residential home.

The defendant owner disputed the claim, arguing that the contractor abandoned the project, overcharged for extras that were part of the base contract, and left deficient work.

The court interpreted the fixed-price contract to determine the base scope of work, finding that some claimed extras were included in the base price while others were compensable.

After accounting for proven payments, loan credits, and a minor set-off for incomplete work, the court found the owner breached the contract by failing to pay.

The contractor was awarded a valid lien and judgment for $86,244.38 plus pre-judgment interest.

The defendants sought leave to appeal an order dismissing their motion for summary judgment and permitting the plaintiff to amend its statement of claim to seek only declaratory relief regarding a 5% share ownership.

The court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's order because the declaratory relief sought was arguably ancillary to statute-barred consequential relief.

The court also found the parameters of section 16(1)(a) of the Limitations Act to be a matter of general importance warranting appellate review.