Master Julian Polika

In a reference under the Construction Lien Act, multiple contractors sought to enforce their claims for lien against the owner and mortgagees of a townhouse development.

The owner had defaulted, and a subsequent mortgagee posted security under s. 44(1) to vacate the liens and facilitate the sale of the remaining units.

The court determined the timeliness and quantum of the various lien claims.

The court held that because the mortgagee chose to post security under s. 44(1) rather than s. 78(10), the liens ceased to attach to the premises and instead became a charge on the posted security in full, rather than being limited to the holdback deficiency.

Alternatively, the court found the mortgagee had acted as an 'owner' under the Act by taking over the completion and sale of the project.

The plaintiff subcontractor brought a construction lien action against the defendant general contractor and owner for unpaid invoices and extras relating to structural steel work.

The defendant general contractor counterclaimed for delay, deficiencies, and back charges, arguing the plaintiff failed to adhere to the project schedule and change order procedures.

The court found that the parties never agreed to a formal written contract or the change order procedure, but proceeded on an agreed price and scope of work.

The court held the plaintiff completed its work within a reasonable time and was not responsible for the project delays, which were attributable to the general contractor.

The plaintiff's claim for the contract balance and proven extras was allowed, and the defendant's counterclaim was dismissed.

The defendants sought to have costs fixed on a full indemnity basis following the discharge of the plaintiff’s construction lien claim and dismissal of the action due to the plaintiff’s failure to comply with court orders.

The defendants later abandoned their counterclaim and submitted a costs outline seeking half of their alleged full indemnity costs.

The court held that the defendants failed to comply with Rule 57.01(5) of the Rules of Civil Procedure by not delivering a proper bill of costs supported by dockets.

The court also found no evidentiary basis to award costs on a full or substantial indemnity basis.

Costs were therefore fixed on a partial indemnity basis in a reduced amount.

Following a reference under the Construction Lien Act regarding emergency flood remediation services, the court addressed outstanding issues of costs and interest.

The plaintiff had claimed a construction lien and additional storage charges, but the lien was found to be out of time and most of the monetary claims failed, with only a small portion of the services claim succeeding.

Applying s. 86 of the Construction Lien Act and proportionality principles, the court held that costs could not exceed what would have been incurred had the matter proceeded in Small Claims Court.

The court therefore capped costs at the Small Claims Court maximum and disallowed many claimed disbursements.

The claim for contractual pre‑judgment interest was rejected, and only post‑judgment interest at the court rate was awarded.

The contractor brought an ex parte motion to substitute a letter of credit for posted cash security under the Construction Lien Act.

The proposed letter of credit was made subject to ICC Publication 590.

The Master dismissed the motion, finding that the inclusion of the ICC Publication 590 term made the letter of credit non-equivalent to the prescribed Financial Guarantee Bond (Form 23), as it raised the potential for the issuer to refuse payment and embroil the Accountant of the Superior Court in litigation.

The court determined the costs of a motion regarding the liability of the defendant 430 to various lien claimants in a construction lien reference.

The defendant 430 had settled with one lien claimant who had carriage of the motion, but the court found 430 remained liable for the costs incurred by other lien claimants who contributed to the motion.

The court fixed costs at $93,500 on a partial indemnity basis and apportioned the award among the contributing lien claimants based on their financial and counsel time contributions.

The plaintiff contractor sought payment for flood remediation services and storage charges and asserted a construction lien against the defendant homeowner’s property.

The court held the lien was not preserved within the statutory time limits under the Construction Lien Act and therefore failed.

Because the parties had not agreed to rates for labour, equipment, or other services, the plaintiff could only recover the fair market value of services on a quantum meruit basis.

The court rejected many claimed charges due to lack of proof of fair value or deficient work by subcontractors, and also dismissed the claim for storage charges where storage had originally been agreed to without cost and later unilaterally altered by the plaintiff.

Judgment was granted only for limited plumbing and labour charges totaling $12,797.80, while the defendant’s counterclaim was dismissed for lack of evidence.

The plaintiff subcontractor registered a claim for lien for concrete foundation work.

The defendants argued the lien was registered out of time.

The plaintiff claimed it attended the site on February 19, 2009, to cut ties and chip concrete, which would bring the April 6, 2009 registration within the 45-day limit.

The court found the February work was to rectify minor deficiencies and amounted to an attempt to bootstrap the claim for lien.

The court held the lien expired because the time for preservation began running when the substantive work was completed in November 2008.

The moving defendant brought motions seeking declarations that the plaintiff’s construction lien claims were not preserved within the statutory 45‑day period and requesting payment out of security posted in lieu of the lands, dismissal of the actions, or alternatively a reduction of security on the basis that certain amounts claimed for site supervision were not lienable services.

The court considered whether work invoiced after the alleged completion date constituted an extra under the original agreement or a separate contract, which would affect the timeliness of the liens under the Construction Lien Act.

The evidence raised a genuine issue requiring a trial regarding whether the additional work extended the completion date of the contract.

The court also held that a request for a driveway quotation could not support a lien claim, but found that the site supervision issue likewise raised a genuine issue for trial.

The motions were therefore dismissed.