Richard C. Belsito

The plaintiffs, Tony’s Touch Plumbing Ltd. and Level V Design & Build Inc., brought construction lien claims against the defendant, Hatcho Nersesian, for unpaid plumbing, HVAC, and project management services and materials supplied for a new home construction.

Mr. Nersesian disputed the claims, alleging overcharging, deficient work, and incomplete work, and brought counterclaims for backcharges and exaggerated lien claims under section 35 of the Construction Lien Act.

The court found that Mr. Nersesian breached his contracts with Tony’s by imposing unreasonable deadlines and terminating the contract without allowing an opportunity to complete work or rectify deficiencies.

The court also found that Level V was entitled to a project management fee for the initial "weather tight" stage and a commission on trades it introduced thereafter, but not a full project management fee for the entire project due to lack of evidence of services.

Mr. Nersesian's counterclaims for backcharges and section 35 damages against both plaintiffs were dismissed due to failure to mitigate and lack of evidence of damages.

This costs endorsement arises from the plaintiffs' acceptance of the defendant's offer to settle for $50,000, which included partial indemnity costs, HST, and disbursements to the date of the offer.

The court assessed the plaintiffs' costs, noting that the total costs claimed were disproportionate to the settlement amount.

Applying the principle that costs must be fair and reasonable from the perspective of the unsuccessful party, the court fixed the plaintiffs' partial indemnity costs at $22,500 plus HST, along with disbursements incurred up to the offer date, leaving the exact disbursement amount for counsel to resolve.

This decision addresses a request for costs following the dismissal of both a first mortgagee's application for court approval of power of sale proceedings and the mortgagor's cross-application for an injunction.

The court awarded costs to the first mortgagee, Albino Armanasco, on a substantial indemnity basis, totaling $24,189.78.

The court found that despite Armanasco's own application being deemed unnecessary, he successfully resisted the mortgagor's injunction request, which was the "substance of the dispute." The court also applied the "hold harmless" provision in the mortgage, entitling Armanasco to costs incurred in enforcing the mortgage.

The mortgagor's arguments for each party to bear their own costs were rejected, particularly due to their unsuccessful cross-application for an injunction.

The applicant first mortgagee sought a declaration validating a power of sale agreement and an order expunging cautions and subsequent encumbrances registered by the respondent mortgagor and second mortgagee.

The respondents brought a cross-application seeking an injunction to restrain the sale and an extension of time to redeem the mortgage.

The court dismissed the application, finding no basis to pre-emptively expunge the registrations or declare the sale valid before closing.

The court also dismissed the cross-application, holding that the mortgagor's right to redeem was extinguished upon the mortgagee entering into an unconditional agreement of purchase and sale, and the mortgagor had not tendered the arrears or proven bad faith.