Michael Mazzuca

Following a successful appeal by the appellant, the parties were unable to agree on the costs of the underlying summary judgment motion.

The respondent argued that costs should be reserved to the trial judge and that the amount claimed was excessive.

The Court of Appeal followed its general practice of deciding costs immediately and awarded the appellant its requested partial indemnity costs of $47,660, finding the amount reasonable given the complexity and importance of the motion.

The court declined to interfere with a separate costs order regarding a co-defendant, as it had not been raised on appeal.

The defendant owner brought a motion for directions seeking to hold the proceeds of a statutory adjudication award in trust, rather than paying the co-defendant contractor, due to a perfected construction lien registered by the plaintiff subcontractor.

The owner argued that paying the award would expose him to paying twice.

The Superior Court dismissed the motion, finding it lacked jurisdiction to vary or stay the adjudicator's order under the Construction Act outside of a judicial review application.

The court emphasized the Act's prompt payment scheme, noting that the owner must pay the award and the contractor would hold the funds in trust for the subcontractor.

The defendant subcontractor moved to declare the plaintiff's construction lien expired and to discharge the lien.

At the time the plaintiff preserved and perfected its lien, the plaintiff corporation had been dissolved for failure to pay a fee, though it was later revived.

The court held that because the corporation was dissolved at the relevant time, it was not a legal entity entitled to preserve or perfect a lien.

The court found it had no equitable discretion to validate the lien retroactively, and even if it did, it would not exercise it in these circumstances.

The motion was granted, the lien discharged, and the security ordered returned.

The plaintiff, an unpaid supplier of building materials, brought a motion under Rule 45.02 to have the proceeds of sale from one of the contractor's construction sites held in court pending the outcome of its action.

The plaintiff argued that the entire proceeds constituted a trust fund under section 8 of the Construction Act, even though the amount owed for materials supplied to that specific property was much less than the total debt owed across multiple projects.

The court held that the statutory trust under section 8 is project-specific, limiting the plaintiff's trust claim to the value of materials supplied to that particular property.

The motion was granted in part, with only the amount owed for that specific property, plus interest, ordered to be retained in court.

Following the dismissal of a motion brought by the defendant and a lien claimant to declare the plaintiff's construction lien expired, the court determined the costs payable to the successful plaintiff.

The plaintiff sought substantial indemnity costs of over $80,000, citing an unaccepted offer to settle and the importance of the motion.

The court found the offer did not comply with Rule 49 and awarded partial indemnity costs.

Applying the principle of proportionality and considering the factors in Rule 57.01, the court fixed costs at $22,000 inclusive of disbursements and HST.