Leroy A. Bleta

Following a trial judgment under the Construction Lien Act where the plaintiff contractor succeeded on its lien claim, the court determined the appropriate costs award.

The court considered the discretionary framework under s. 86 of the Construction Lien Act and the factors in Rule 57.01 of the Rules of Civil Procedure.

Although the claim amount was modest, the court found the estate defendant’s intransigence and failure to critically assess and resolve the claim significantly lengthened the litigation.

Proportionality concerns were rejected, and the court concluded the successful plaintiff should recover substantial indemnity costs for most of the proceeding.

Costs of $29,000 were awarded against the estate defendant and $4,000 jointly against the defaulting defendants.

A subcontractor commenced an action under the Construction Lien Act seeking payment for labour and materials supplied during a residential renovation project.

The defendants disputed the identity of the contracting party, the quantum of work performed, the propriety of the charges, and alleged deficiencies and improper termination.

The court found that the subcontractor company, not the individual worker, contracted with the foreman’s company and performed the work as claimed.

Allegations of deficient work and contractual termination were rejected, and the court held that payments could properly be allocated to other outstanding accounts.

The defence that the contract was void under the doctrine of ex turpi causa due to a cash arrangement intended to avoid HST was rejected.

Judgment was granted for the subcontractor for the amount of the lien and against the defaulting defendants.

The plaintiff brought motions to set aside administrative dismissals in three related actions for unpaid invoices.

The actions were dismissed for delay after the plaintiff's former counsel failed to take steps to advance the litigation or respond to status notices.

Applying the Reid factors, the court found that while the plaintiff did not intend to abandon the actions and the missed deadlines were due to counsel's inadvertence, the delay in bringing the motions to set aside the dismissals (up to 31 months) was inordinate.

The court concluded that the interest in finality must trump the plaintiff's plea for an indulgence, and dismissed the motions with costs.