P. Virc

The defendant property owner brought a motion under s. 47 of the Construction Lien Act to discharge a claim for lien registered by the plaintiff adjacent landowner.

The court found that while there were triable issues regarding whether the plaintiff was a 'contractor' and the previous owner an 'owner' under the Act, the lien was not preserved within the strict 45-day time limit under s. 31.

The evidence showed the contract work was completed more than a year before the lien was registered.

The motion was granted and the lien discharged.

Following the dismissal of the applicants' application, the respondents sought costs.

One respondent settled their costs claim, while the other, represented by pro bono counsel, sought substantial indemnity costs due to the applicants' conduct.

The court held that pro bono representation does not preclude a costs award and that ordinary costs rules apply.

The court found the applicants' conduct expanded the litigation but did not rise to the level of reprehensible conduct required for substantial indemnity.

The court awarded partial indemnity costs to the pro bono respondent in the amount of $84,836.79.