L. Wise

Following a motion for partial summary judgment concerning withheld payments, delay claims, and back-charge claims in a construction dispute, the parties made written submissions regarding costs.

The plaintiff had succeeded only on the delay claim portion of the motion while the remainder of the issues were directed to trial.

The court considered the cost principles under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, including the parties’ divided success and the effect of settlement offers.

The court found that neither party had achieved sufficient success to justify a costs award and that the offers to settle did not trigger Rule 49 consequences.

The plaintiff subcontractor brought a motion for partial summary judgment against the defendant general contractor for unpaid subcontract balances.

The defendant argued it was entitled to withhold funds due to outstanding close-out documentation, a delay claim, and a back-charge for a transfer-switch.

The court granted summary judgment to the plaintiff for $77,501.62 regarding the delay claim, finding the defendant provided no credible evidence to substantiate it.

However, the court found genuine issues requiring a trial regarding the outstanding documentation and the transfer-switch back-charge due to conflicting evidence, and directed a trial on those remaining issues.

The moving party sought to vary a prior costs order so that costs would be payable personally by a principal of the plaintiff corporation, alleging that the principal had sworn a misleading affidavit in opposition to a motion for security for costs.

The motion relied on Rule 59.06(2) of the Rules of Civil Procedure and argued that evidence from a later judgment debtor examination contradicted the earlier affidavit.

The court held that, except for one questionable statement, the evidence did not sufficiently contradict the affidavit and did not meet the test for fresh evidence established in Becker Milk.

Further, the moving party had prior knowledge raising doubts about the corporation’s assets and failed to exercise reasonable diligence, such as cross‑examining on the affidavit.

The motion to vary the order was therefore dismissed and costs were awarded to the responding party.