Richard Cooper

Following a six‑day construction dispute trial involving claims for unpaid masonry work and breach of statutory trust under the Construction Lien Act, the successful plaintiff sought substantial indemnity costs exceeding $138,000.

The court had previously found that the corporate defendant breached statutory trust obligations and that its principal was personally liable, including findings that false declarations were advanced in support of the defence.

Applying the factors in Rule 57.01 of the Rules of Civil Procedure and the principle of reasonableness in costs awards, the court held that the amount claimed was excessive relative to the value and complexity of the claim.

Although substantial indemnity costs were justified because of the breach of trust and litigation conduct, the court reduced the award.

Costs were fixed at $90,000 inclusive of disbursements and taxes.

A masonry subcontractor sued a homebuilder and its directing mind for unpaid amounts under four verbal construction contracts relating to brick and stone work on residential properties.

The defendants asserted that the subcontractor had been fully paid, relying primarily on alleged cash payments evidenced by copies of declarations acknowledging receipt.

The court rejected the credibility of the builder’s principal, finding the alleged cash payments were not proven and that the declarations were unreliable.

The court also found that funds received by the builder in respect of the projects constituted trust funds under the Construction Lien Act and that those funds had been improperly diverted.

Judgment was granted against the builder and its directing mind jointly and severally for unpaid contract amounts and breach of statutory trust.