N. Aresta

Following a successful trial in a construction lien action where the plaintiff was awarded damages and the defendant's counterclaim was dismissed, the parties made written submissions on costs.

The plaintiff sought costs on a partial and substantial indemnity basis, relying on an unaccepted offer to settle that was beaten at trial.

The court applied Rule 49.10, finding the plaintiff's offer triggered substantial indemnity costs from the date of the offer.

After adjusting for excessive pre-trial hours and an abandoned motion, the court fixed costs payable to the plaintiff at $54,925.36 inclusive of disbursements and HST.

A general contractor brought a construction lien action for unpaid invoices arising from a residential apartment renovation project, and the owner counterclaimed for deficiency, delay, and lost rental income damages after terminating the contract.

The court held the owner unlawfully terminated the contract, finding no fundamental breach, repudiation, or anticipatory repudiation by the contractor, and further finding the owner failed to provide the clear contractual notice of default required before termination.

The court also found the owner had refused to permit the contractor to return to cure alleged deficiencies, failed to prove its post-termination damages, and failed to mitigate.

The contractor recovered the unpaid value of approved work, subject to disallowance of one unproven bin charge, together with the contractual holdback and interest.