Santiago Hernan Costa

The Court of Appeal previously dismissed the moving party's motions for leave to appeal and permitted the responding party to make written submissions for full indemnity costs.

The responding party failed to file its costs submissions by the extended deadline and was deemed to have abandoned its request for full indemnity costs.

The court ordered partial indemnity costs of the four motions for leave to appeal to the responding party, fixed at $1,500 inclusive.

The applicant sought an interim injunction to prevent the Town of Caledon from enforcing a work order requiring the removal of 5,500 tonnes of illegal fill from his property, as well as an order of mandamus for document disclosure.

The court applied the RJR-MacDonald test, noting the high hurdle for enjoining a public authority enforcing its by-laws in the public interest.

Finding no serious issue to be tried, no irreparable harm, and that the balance of convenience favoured the Town, the court dismissed the motion for injunctive relief and mandamus.

The Divisional Court issued an endorsement on costs following multiple appeals under the Construction Lien Act.

Noting that the case was litigated without regard for proportionality, the court recognized that the respondent on appeal had no choice but to engage with its meritorious but modest claim.

Costs of all appeals were fixed in the aggregate at $65,000 inclusive, payable to the respondent on appeal from the appellant and recoverable from the lien security.

The appellant sought to appeal a costs order made under the Construction Lien Act independent of the merits of the judgment.

The court held that pursuant to section 67(3) of the Construction Lien Act, the requirement to obtain leave to appeal costs under section 133(b) of the Courts of Justice Act applies.

As the appellant did not seek or obtain leave, the appeal was quashed.

The appellant mortgagee appealed multiple orders, including a finding of contempt for attempting to sell a property under a power of sale in violation of a court order, and a finding that the respondent's construction lien had priority over its mortgage.

The Divisional Court dismissed all appeals.

The court held that the appellant was bound by its formal admission of contempt made during sentencing, and the Apology Act did not apply to admissions made under oath or by counsel in court.

Furthermore, the court upheld the finding that the construction lien had priority because the appellant failed to prove any funds were actually advanced under its mortgage.

The plaintiff sought costs following a successful motion to determine priority between creditors after a judicial sale.

The plaintiff had made an offer to settle for $25,000, which was beaten at the hearing.

The court found the responding party's conduct to be particularly egregious, noting a combination of deceit, frivolous arguments, and repetitive proceedings designed to make collecting a simple debt as expensive as possible.

Consequently, the court awarded the plaintiff full indemnity costs fixed at $150,000.

The plaintiff sought substantial indemnity costs of $15,172.25 following its success on a motion brought by the moving party to stay a finding of contempt.

The moving party argued costs should be reduced because the plaintiff was unsuccessful on its oral motion for a finding of contempt against an individual personally.

The court declined to award substantial indemnity costs due to the failed oral motion, but awarded the plaintiff partial indemnity costs fixed at $11,000.

This motion endorsement addresses two motions: one by 1746878 Ontario Inc. to stay a finding of contempt against it, and an oral cross-motion by Pollard Windows Inc. alleging continued contempt by Andrew Ferri.

The court applied the RJR-MacDonald test for a stay, finding no serious issue to be tried as 1746878 Ontario Inc. had previously admitted contempt.

The court also found no irreparable harm.

Consequently, the motion to stay the contempt finding was dismissed.

The court further dismissed Pollard Windows Inc.'s oral motion, clarifying that the prior order against Andrew Ferri precluded him from participating in proceedings but not from acting as a director of 1746878 Ontario Inc.

This motion determined priority between creditors following a judicial sale of a residential property.

Pollard Windows Inc., a construction lien claimant, sought priority over 1746878 Ontario Inc., an assignee of a mortgage.

The court found that the mortgage held by 1746878 Ontario Inc. was a fraudulent conveyance, part of a scheme by the controlling individual (Andrew Ferri) and related entities to defeat creditors.

The court rejected 1746878 Ontario Inc.'s claims of priority, finding that the alleged notice of sale was invalid, it failed to prove any actual advances under the mortgage, and the transaction bore numerous badges of fraud.

Pollard Windows Inc. was granted priority for its judgment and costs.

The plaintiff sought costs of approximately $3,000 for a motion heard on January 13, 2017, where the court granted possession of the subject property and enjoined a sale under power of sale.

The mortgagee, 1746878 Ontario Inc., argued it should not be liable for costs as it took no part in that motion.

The court agreed, noting that 1746878 Ontario Inc. did not appear until a later date, and declined to order costs against it for the January 13 motion.

The plaintiff in a construction lien action brought a motion for leave to amend its Statement of Claim to plead restitution unjust enrichment and for leave to file a document brief at trial.

The court denied leave to amend, finding that the proposed amendments were legally untenable because the Construction Lien Act prohibits joining non-contractual claims, such as pure restitution unjust enrichment, in a lien action.

However, the court granted the plaintiff leave to file its document brief at trial, as the documents were potentially relevant and any prejudice from late service was mitigated by a trial adjournment.

Costs of $7,500 were awarded to the responding party.

Following a successful motion to cite the responding corporation for contempt of court, the plaintiff sought full indemnity costs.

The court awarded costs of $9,171.05 on a full indemnity scale against the corporation due to its reprehensible actions in deliberately contravening court orders.

The court declined to order costs against an individual who was not involved in the motion.

The defendant brought a motion to compel answers to undertakings from examinations for discovery, and the court also determined costs for a previously dismissed security for costs motion.

The court ordered the plaintiff to produce a detailed ledger but dismissed the requests for further time sheets and bank records.

The plaintiff was awarded $5,000 in substantial indemnity costs for successfully defending the security for costs motion and for mixed success on the undertakings motion.

Dew Point Insulation Systems Inc. brought a claim under the Construction Lien Act against Aqua Mechanical Contracting Ltd., Metrolinx, and Grascan Construction Ltd. for unpaid services and materials.

Aqua defaulted, and Metrolinx was discontinued.

The primary issue at trial was whether security posted by Grascan to vacate Aqua's lien could be used to satisfy Dew Point's claims, including costs and pre-judgment interest, beyond the security posted for Dew Point's own lien.

The court held that the security posted for Aqua's lien could be notionally pooled with Dew Point's lien security to satisfy Dew Point's claims, costs, and pre-judgment interest, relying on the principle that all persons having lien claims are entitled to distribution from the pooled security.

The defendant brought a motion for leave under s. 67(2) of the Construction Lien Act for production and discovery of the plaintiff.

The plaintiff brought a cross-motion for similar relief against the defendant.

The plaintiff had previously set the action down for trial, triggering Rule 48.04(1) of the Rules of Civil Procedure, which requires a substantial and unexpected change in circumstances to grant leave for further discovery.

The court granted the defendant's unopposed motion.

The court dismissed the plaintiff's cross-motion, finding that the plaintiff deliberately chose to set the action down for trial without completing discoveries and failed to meet the strict test under Rule 48.04(1).

The defendant general contractor brought a motion to dismiss the plaintiff subcontractor's action, obtain default judgment on its counterclaim, and cancel a lien bond.

The plaintiff had abandoned the action after its counsel was removed from the record.

Another subcontractor opposed the cancellation of the lien bond, arguing it should be pooled to cover its own costs and interest.

The court dismissed the plaintiff's action, granted default judgment on the counterclaim, and ordered the lien bond cancelled, finding that the pooling provisions of the Construction Lien Act did not apply where all liens had been bonded off.