Leonard Ricchetti

The plaintiff was successful on the main issue of a motion but unsuccessful on the leave issue.

The parties made written submissions on costs.

The defendant argued costs should be in the cause of the appeal and sought a reduction in quantum.

The court held there was no reason to deviate from the general rule that costs are payable within 30 days.

The court reduced the plaintiff's claimed costs to account for excessive time and the issue on which the plaintiff was unsuccessful, awarding costs of $6,349 all inclusive.

The defendant owner brought a motion pending the plaintiff's appeal of a construction lien trial judgment, seeking security for costs and the return of monies posted to vacate the lien.

The court held that leave under s. 67(2) of the Construction Lien Act is not required for appellate interlocutory motions.

The court dismissed the request to return the monies, noting the judgment was stayed pending appeal.

The court also dismissed the motion for security for costs under Rule 61.06, finding the owner failed to establish that the appeal was frivolous and vexatious or that the plaintiff lacked exigible assets, and found no special circumstances justifying an order under the residual discretion.

The plaintiff brought a motion to enforce an alleged settlement agreement reached between counsel regarding a Small Claims Court appeal.

The plaintiff argued that the parties had agreed to a 'walk away' settlement, supported by email correspondence and draft Minutes of Settlement to which the defendants' counsel did not respond.

The defendants denied that a settlement was reached, claiming they had requested a contribution towards costs.

The court dismissed the motion, finding that the conflicting evidence raised a credibility issue that could not be resolved on a paper record, applying the standard of a summary judgment motion.

No costs were awarded due to the defendants' counsel's failure to respond to correspondence and inclusion of irrelevant matters in their materials.