Rocco A. Ruso

This decision concerns a motion by Ausenco Engineering Canada Inc. to discharge or reduce a construction lien registered by Scott Steel Erectors Inc. in relation to the Magino Gold Mine project.

The court addresses whether Scott Steel could register a lien for work performed under multiple subcontracts, including work by a related entity, Scott Concrete Services Inc., and whether the lien was willfully exaggerated by the inclusion of delay damages.

The court finds that there is a triable issue regarding the application of promissory estoppel and the treatment of the subcontracts "as one," but holds that there is no triable issue as to delay damages under certain subcontracts.

The lien is reduced to $23,670,377.46 plus HST.

The respondents brought a motion to vary a consent order registered on title to land, seeking to limit its application to only lots relevant to the dispute.

The applicants opposed, citing the respondents' breaches of obligations under the consent order and minutes of settlement, and concerns about related companies.

The court dismissed the motion, finding that the respondents did not meet the high threshold to vary a consent order, as the "new facts" (PIN assignments) were foreseeable, and the respondents had demonstrated a disregard for their obligations, justifying the applicants' concerns about security.

The defendants unsuccessfully moved for summary judgment.

The plaintiff, Pachino Construction Co. Ltd., sought costs for that motion.

The court awarded substantial indemnity costs of $40,000 to the plaintiff, finding the defendants' position unreasonable and their conduct reprehensible, particularly regarding false information provided by one defendant's wife.

The court ordered the costs to be paid within 30 days, regardless of the ultimate trial outcome.

The defendants moved for summary judgment to dismiss the plaintiff's action for equitable set-off.

The plaintiff sought to set off a $69,000 costs award it owed to the defendants from a previous unsuccessful action against a $416,000 judgment debt owed by one of the defendants to the plaintiff.

The court dismissed the motion, finding that genuine issues requiring a trial existed regarding whether the costs were actually owed to the defendant spouse and whether the claims were so closely connected that it would be manifestly unjust not to allow the set-off.

The plaintiff brought a motion for leave to amend its Statement of Claim to add new corporate defendants and allegations of fraudulent conveyances against the individual defendant.

The individual defendant opposed the motion, arguing the claims were statute-barred under the Limitations Act, 2002 and that the original corporate defendant had been dissolved.

The court found that the claims were not clearly statute-barred, noting the potential application of the 10-year limitation period under the Real Property Limitations Act for guarantees related to mortgages, and that the Business Corporations Act permits proceedings against dissolved corporations.

The motion to amend was granted.

The court fixed the "costs thrown away" for the plaintiffs in the sum of $30,000, inclusive of disbursements and H.S.T., payable by the defendants jointly and severally.

These costs were incurred by the plaintiffs due to the defendants' prolonged denial of successor corporation status, which necessitated the plaintiffs' efforts to establish CSL's responsibility for CPSL's liabilities.

The court had previously granted the defendants' motion to set aside pleadings against CPSL on the condition that the plaintiffs be paid these costs.

This decision addresses the costs arising from a dismissed summary judgment motion brought by the defendant, Klein-Rose Homes Inc., under the Construction Lien Act.

The court applied section 86 of the CLA, which grants broad discretion in awarding costs in construction lien proceedings, and considered the Rules of Civil Procedure where not inconsistent.

The plaintiff, Allcon Concrete & Haulage Ltd., was the successful party on the underlying motion and sought costs.

The court fixed costs at $26,560 for the plaintiff, payable upon the plaintiff's success at trial or a subsequent summary judgment motion in proving the validity of its claim for lien, irrespective of the full success on the contract claim or defense against the counterclaim.

The court rejected the defendant's argument to reserve costs to the trial judge and the plaintiff's assertion of the defendant's "unduly aggressive and unreasonable" conduct.