Robert W. Collins

A paving contractor sought payment for unpaid invoices relating to asphalt work performed at two Canada Post facilities.

The defendant alleged the work was deficient and counterclaimed for remedial costs, asserting the plaintiff failed to perform the contract as originally agreed.

The court held that the parties had orally varied their written contract at a pre‑construction meeting, changing the scope of work from removal and replacement of asphalt to grinding and repair while maintaining the same price structure.

The court rejected the defendant’s credibility on key issues and found no evidence of complaints from the project owner or of required remedial work.

Judgment was granted for the unpaid balance and the counterclaim was dismissed.

Following a successful application discharging two mortgages, the applicants sought substantial indemnity costs totalling over $22,000.

The court considered the factors under Rule 57 of the Rules of Civil Procedure and acknowledged that the applicants had succeeded on the merits.

However, the court found the matter was not complex and noted that the applicants had effectively avoided repayment of a valid debt through the expiration of the limitation period under the Real Property Limitations Act.

The court also considered the late filing of the applicants’ costs submissions.

In the circumstances, the court concluded the case was not appropriate for a costs award.

The applicants sought an order discharging two registered charges on real property, including a fourth mortgage granted to the respondent corporations.

No payments had been made on the mortgage since 1991, and there had been no written acknowledgment of the debt.

The court held that the Real Property Limitations Act governed the limitation period for enforcing mortgage debt rather than the Limitations Act, 2002.

Because more than ten years had elapsed without payment or a signed written acknowledgment restarting the limitation period, recovery on the mortgage was statute-barred.

The court ordered the discharge of the mortgages from title.