Court File and Parties
COURT FILE NO.: CV-12-454092 DATE: July 24, 2017
ONTARIO SUPERIOR COURT OF JUSTICE
IN THE MATTER OF the Construction Lien Act, R.S.O. 1990, c.C.30
BETWEEN:
TRENCHLINE CONSTRUCTION INC. Plaintiff
AND:
UNIMAC-UNITED MANAGEMENT CORP. and METROLINX Defendants
COUNSEL: Mark Wiffen for Trenchline Construction Inc. James W. MacLellan for Trisura Guarantee Insurance Company Derek A. Schmuck for Direct Equipment Ltd.
HEARD: April 5 and 6, 2017
JUDGE: Master C. Wiebe
REASONS FOR JUDGMENT
(Trenchline claim)
I. Introduction
[1] On March 1, 2017, I scheduled a two day trial hearing of the remaining issues to be determined in the claim of Trenchline Construction Inc. (“TCI”) in this reference. There are two references before me in regard to the TCI claim. One is the TCI lien claim which was perfected in the action with the above noted title of proceeding. This will be called the “Lien Action.” The other is the non-lien action with court file number, CV-13-474662, wherein TCI is the plaintiff and the Trisura Guarantee Insurance Company (“Trisura”) and Unimac-United Management Corp. (“Unimac”) are the defendants. This second action will be called the “Bond Action.”
[2] The defences of Unimac have been struck, and Metrolinx has through previous orders of mine been let out of the Lien Action. Therefore, the only active parties are TCI, Trisura and another lien claimant, Direct Equipment Ltd. (“Direct”). These Reasons apply to both references.
[3] At the trial hearing, the only issue remaining to be determined is whether the TCI seven claims for “stand-by charges” totaling $449,862.61 are recoverable in the Lien Action and in the Bond Action. Trisura has undertaken to pay outstanding progress draws totaling $595,075.08, the four extra claims totaling $40,272.40, and the holdbacks on these amounts. Trisura, however, disputes the entirety of the stand-by charges both in the Lien Action and the Bond Action; Direct disputes the stand-by charges in the Lien Action in order to increase the holdback entitlement of other lien claimants.
[4] Concerning the claimed stand-by charges, I have determined for the reasons given herein, that they are not recoverable in either action.
II. Background and Evidence
[5] The trial hearing was scheduled to take place on April 5 and 6, 2017 as a summary trial with only one witness, namely John Romanovich, the president of TCI. TCI filed two affidavits sworn by Mr. Romanovich, one sworn on December 2, 2016 (“the First Affidavit”) and the other on March 2, 2016 (“the Second Affidavit”). Trisura filed no affidavit, but did file documents that were produced in the course of this reference. The following are the relevant and undisputed facts based on this evidence.
[6] TCI was the subcontractor to Unimac concerning a project known as the “Rehabilitation of the Fuel System at Willowbrook Rail Facility.” This will be called “the Project.” The owner was Metrolinx and the general contractor was Unimac. The general contract between Unimac and Metrolinx will be called “the General Contract.” TCI provided the underground piping to Unimac in relation to the Project.
[7] Trisura issued a Labour & Material Payment Bond (“the Bond”) to Metrolinx for the Project. The Bond responded to claims of non-payment from those with contracts with Unimac as long as the claims concerned “labour and material used or reasonably required for the use in the performance of the [General Contract].”
[8] There was a subcontract between TCI and Unimac (“the Subcontract”). The Subcontract documents were several: the letter of intent issued to TCI by Unimac dated October 21, 2010 (“the Letter of Intent”), which showed that the subcontract price was a fixed price of $1,802,241 plus HST; the Contractor’s Cost Breakdown that TCI issued to Unimac dated October 29, 2010 (“the Breakdown”), which showed a schedule of deadlines for 13 of 26 items of TCI work plus a phrase “schedule to follow” for the other 13 items plus a breakdown of the contract price between the 26 items; and a Purchase Order issued to TCI by Unimac dated November 5, 2010 (“the Purchase Order”). The Purchase Order referred to the Breakdown.
[9] The Purchase Order also contained the following “remark”: “Standard CCDC Contract applies.” In the Second Affidavit Mr. Romanovich stated that Unimac disclosed in its productions in the litigation the General Conditions in the General Contract. These were from the CCDC4 – 1982 form of contract. Earlier that year on July 12, 2010, Charles Daley of Unimac had emailed Mr. Romanovich a series of electronic documents concerning the General Contract in 7 dropbox accounts. These documents were used by TCI to prepare its quotation. It is not clear whether these dropboxes contained the CCDC4 - 1982 General Conditions.
[10] TCI planned to do its work over 30 weeks, namely in about 7 ½ months. It was on the critical path of the Project. TCI proceeded with its work. There was substantial schedule slippage. This caused stress. Unimac consistently blamed Metrolinx for the delays.
[11] In the First Affidavit, Mr. Romanovich stated that if TCI workers were required to be on site and did not work for reasons beyond their control, TCI was “required” (in accordance with TCI’s “arrangements” with its workers) to pay them a minimum of eight hours a day. On the other hand, if TCI received advance notice that work would not be available and workers were told to stay away from the site, TCI was still obligated under these “arrangements” to pay the workers a minimum of four hours per day. These arrangements were the result of what Mr. Romanovich described as the uniquely skilled nature of TCI’s workforce.
[12] At Unimac’s instruction, TCI made its crews and equipment available for the long weekend in May, 2011, namely May 21 and 22, 2011. The crews and equipment arrived, but Unimac had not excavated for the piping, leaving the TCI workers without work. On May 24, 2011, TCI rendered an invoice to Unimac for “standby” charges in the amount of $33,041.53 concerning this weekend. Unimac eventually paid this invoice.
[13] On June 24, 2011, Mr. Romanovich sent Mr. Daley two emails. The first one was an email wherein Mr. Romanvich stated that he expected Unimac or Metrolinx to pay for TCI’s delay and impact costs. Attached was a “Standby/Delay Impact Rates” sheet (“Rate Sheet”) showing costs for TCI labour and equipment on a daily, weekly and monthly basis. The Rate Sheet calculates the labour rate on the basis of the four hour per day minimum required by TCI’s “arrangements” with its workers when workers do not come to the site.
[14] The second email enclosed a document concerning extras. Item No. 6 was a new item that was stated to be for “standby/delay impact” costs for “3 weeks only” between May 24, 2011 and June 24, 2011 in the amount of $43,642.50. With HST the amount is $49,316.03. The document referred to the Rate Sheet. Presumably, the amount was derived by multiplying the weekly rate shown in the Rate Sheet, $14,547.50, by 3. This is “Standby Invoice 1.”
[15] On August 22, 2011, TCI emailed Unimac another invoice for extras. Item 9 in this document was stated to be for “standby week of August 15, 2011.” The claim was stated to be $14,547.50 less $2,700, described as a “credit 2 welders no longer on standby,” for a total of $13,387.68 (HST inclusive). This is “Standby Invoice 2.”
[16] On September 26, 2011, TCI emailed Unimac a series of documents, one of which was described as “standby costs August 22, 2011 to September 23, 2011.” The standby claim was stated to be for 14 days between August 29 and September 23, 2011 due to a stop work order from the Ministry of Labour. The stop work order was stated to concern Unimac’s trench shoring safety issues. The daily charge was shown to be $1,560, which is about half of the daily charge shown on the Rate Sheet. The total claim was $28,381.08. This is “Standby Invoice 3.”
[17] On November 9, 2011, there was a meeting between Charles Daley and Ronald Chan, both from Unimac, and John Romanovich and Larry Romanovich, both from TCI. John Romanovich prepared and circulated minutes of this meeting. The minutes state that the issue of the standby/delay invoices was discussed. They also state that Unimac said that it was pursuing these claims with Metrolinx, but that “there was no funding or monies for their delays.” The minutes also state this: “UNIMAC guarantees if their (sic) is funding, TCI will be paid.”
[18] The minutes state that TCI delivered a new standby claim at this meeting plus the Rate Sheet and wanted Unimac to sign both showing its approval. The minutes state that Unimac did not sign these documents advising that “they have already received TCI rate sheet via email and no signature is required” and that “UNIMCA and Go Transit has already paid for extras utilizing these rates.”
[19] The invoice that TCI delivered at that meeting was dated November 7, 2011 and concerned alleged “standby/delay” costs for 27 days between October 3, 2011 and November 8, 2011. The daily charge was stated to be $1,990, which is 69% of the daily rate shown in the Rate Sheet. The delays were stated to be because of “no trench preparation for Trenchline Construction.” The total claim was $69,822.14. This is “Standby Invoice 4.”
[20] On February 10, 2012, TCI emailed another invoice, dated February 9, 2012, for standby costs from November 12, 2011 to February 8, 2012. This invoice introduced a new concept, “onsite” standby costs. This concept puzzled me throughout the trial. On re-examination, Mr. Romanovitch explained it as being the alleged cost TCI incurred for having workers on site (working) after the Project was scheduled to be completed, namely after November 11, 2011. The most I could make of this concept was that it appeared to be one of two things, either that the days the TCI workers worked after scheduled Project completion represented days on “standby” when that same work was not done before scheduled Project completion, or that TCI’s workers were unable to work during these days on other projects due to the Project’s late completion. Unlike the Rate Sheet, this charge was calculated on the basis of a full eight hours per day, although Mr. Romanovitch admitted TCI’s workers were actually working on these days. The daily rate indicated in the attached sheet was $3,611, which, unlike the Rate Sheet, included plant and equipment costs. The number of “onsite” standby days was indicated to be 28. The total “onsite” standby claim was $101,108.
[21] The other part of the February 10, 2012 invoice was for “offsite” standby charges. These concerned 44 days on which workers were allegedly not working. The daily rate is shown to be $1,978, which, although based on four hours per day, is different from the rate in the Rate Sheet. The total “offsite” standby claim was $87,032. The February 9, 2012 invoice totalled $212,598.20 (HST inclusive). It is “Standby Invoice 5.”
[22] On March 9, 2012 TCI emailed another invoice for standby costs concerning 30 days between February 9, 2012 and March 9, 2012. The total “onsite” standby charges were for one day. The total “offsite” standby charges were for 29 days. The rates applied were the same as in Standby Invoice 5. The total of this last claim was $68,899.49 (HST inclusive). This is “Standby Invoice 6.”
[23] On March 12, 2012 Unimac sent TCI a letter stating that Metrolinx had terminated the General Contract on March 9, 2012, and that Unimac was terminating its subcontract with TCI. TCI registered two claims for lien, one in the amount of $1,006,050.85 on February 23, 2012; and the other in the amount of $79,159.44 on April 4, 2012.
[24] On March 22, 2012 TCI delivered another invoice which included a $7,458 (HST inclusive) standby charge for “crane, equipment and plant” for the period March 10 to 31, 2012. This is Standby Invoice #7.
[25] The total of all seven Standby Invoices is $449,862.61 (inclusive HST). No holdback was deducted from these invoices.
III. Issues
[26] Having reviewed the submissions and heard argument, I have concluded that the following issues are to be determined in this trial:
a) Does TCI have a contractual entitlement to claim standby costs? b) If so, has TCI proven its standby costs? c) If so, has TCI proven an entitlement under the Bond to its alleged standby costs? d) In any event, does TCI have lien rights for its standby cost claims?
[27] As to the credibility of Mr. Romanovich, I have decided to deal with that matter in my analysis of the issues.
IV. Analysis
a) Contractual Entitlement to Claim Standby Costs
[28] Mr. Wiffen argued that TCI has a contractual right to claim recovery for standby costs by virtue of the remark in the Purchase Order, namely “Standard CCDC Contract applies.” He argued that, as a result, the General Conditions of the General Contract were incorporated into the Subcontract, with the references to the “Owner” being deemed to refer to Unimac and the references to the “Contractor” being deemed to refer to TCI. This despite the fact that Mr. Romanovich was not made aware of these General Conditions until the litigation.
[29] Within these General Conditions there is “GC4 Delays,” which stipulates an entitlement for the recovery of “reasonable costs” in the event “the Contractor is delayed in the performance of the Work.” There are three specified situations for such recovery, one being on account of delay caused by “an act or omission of the Owner,” the second being on account of delay caused by a stop work order not caused by the “Contractor,” and the third being on account of delay caused by neither party.
[30] Mr. MacLellan did not dispute this line of argument. What concerned him was the scope of the claimed entitlement. He argued that the TCI claim seemed to be predicated on an alleged promise by Unimac to make the site constantly available to TCI, thereby creating potential contractual entitlement to delay damages whenever the site was not so available. He argued that there was no evidence of such a promise by Unimac.
[31] As to the point about the incorporation of the General Conditions by reference, I accept Mr. Wiffen’s argument. The Purchase Order “remark” states that the “standard CCDC contract applies.” The General Conditions being discussed, certainly GC4, are common to most, if not all, CCDC forms of contract. These forms of contracts are used throughout the industry, and would have been known to these parties. I note as well that the Purchase Order was prepared by Unimac, and that in accordance with the doctrine of contra proferentem any ambiguity in a contract that cannot be resolved through other principles of contract interpretation should be interpreted against the interest of the author of the document; see APM Construction Services Inc. v. Caribou Island Electric Ltd., 2013 NSSC 234 at paragraph 62. I, therefore, find that the General Conditions of the General Contract were incorporated by reference into the Subcontract.
[32] As to whether GC4 creates an entitlement to standby costs, I believe that it does. Standby costs are delay related. As I understand them, they concern costs a contractor incurs (labour and equipment) on account of a delay in its work, caused usually by other work of other parties not being done on time. As to the question of whether the absence of notice, as specified under GC4.4 is fatal to a claim, I, again, agree with Mr. Wiffen that it does not, as the notice requirement is pertinent only the issue of a schedule extension, not the issue of an entitlement to reimbursement for delay costs; see Pacific Coast Construction Co. v. Greater Vancouver Regional Hospital District at paragraph 87.
b) Has Trenchline Proven its Standby Costs?
[33] In my view, the largest issue in this trial is whether TCI has proven that it has incurred the claimed standby costs. Its claims to contract entitlement and quantum meruit in this regard turn on that issue. It was undisputed that the onus for proving these costs rests on TCI, on a balance of probabilities.
[34] Having reviewed the evidence, I have concluded that TCI has failed to meet this onus. There is simply insufficient substantiation for TCI’s claim.
[35] First, the vast majority of the six TCI standby claims concern what was called “offsite” labour costs. These claims for labour costs are based on Mr. Romanovich’s assertion that TCI had “arrangements” with its uniquely skilled workforce whereby it had to pay its workers at least 4 hours a day in the event they were not called to the site. This was done, according to Mr. Romanovich, to keep these prized workers available until the site was ready for them. The trouble is that there was no corroboration for these unusual “arrangements.” No document showing these “arrangements” was produced. There was no affidavit from a TCI worker. This is a glaring point, because TCI relied on these unusual “arrangements” and the unique nature of its workforce to argue that it had in fact incurred these standby costs and properly mitigated the delays.
[36] Second, there was no corroboration for TCI’s alleged payment of the claimed standby charges. There were no cheques, pay stubs, time sheets or affidavits from TCI workers confirming the alleged payments for labour standby costs. TCI also filed no evidence corroborating the claimed charges for idle equipment. In the end, the claims amounted to nothing more than a series of calculations by John Romanovich. This was a significant shortcoming.
[37] Third, TCI’s primary argument was that Unimac agreed to pay these claims. Had there been evidence of such agreement, this would have been a forceful argument. However, the evidence was not there. Mr. Romanovich insisted that the TCI Rate Sheet was accepted by Unimac (and Mr. Daley in particular) and that Unimac agreed to pay TCI for standby charges in accordance with the Rate Sheet. There was no evidence from Mr. Daley substantiating this point. In addition, I note that Mr. Romanovich was highly critical of Mr. Daley for having misled TCI concerning a credit Unimac extracted from TCI in the tender stage. Had Mr. Daley been produced, it is an open question, therefore, whether I would have found him credible in any event.
[38] In the end, the only evidence TCI presented to corroborate this position were the minutes of a November 9, 2011 meeting between Mr. Daley and Ron Chan of Unimac and the two Romanovichs of TCI. These minutes were prepared and circulated by John Romanovich. The only evidence that Unimac accepted the minutes in their totality was Mr. Romanovich’s statement that he received no response after he circulated the document. TCI called no evidence from Unimac about this or any of the issues.
[39] Furthermore, the minutes themselves do not show that Unimac agreed to pay the standby claims. All they confirm, in my view, is that Unimac had submitted and would submit the TCI standby claims to Metrolinx, and that Unimac would pay them only if Metrolinx paid them. The minutes make it clear that Unimac itself refused to pay the claims: “TCI asked what if Go Transit does not agree with UNIMAC [about the TCI standby claims]. UNIMAC insists that there is no funding or monies for their delays.” The most the minutes state is the following: “UNIMAC guarantees if their (sic) is funding, TCI will be paid.” According to the minutes, Unimac even refused to sign the Rate Sheet. What follows is a self-serving statement, namely that Unimac refused to sign the Rate Sheet because it had already agreed to pay “extras utilizing these rates.” But even this self-serving statement is of little consequence because it pertains to “extras,” not standby/delay costs. Therefore, it is an open question as to whether Unimac even agreed to TCI’s standby rates. In short, the most that TCI showed on this point is that Unimac may have agreed to a pay-when-paid provision concerning the TCI standby claims.
[40] Fourth, if this pay-when-paid agreement can be established, which is an open question, there was no evidence that would have triggered the agreement. It is undisputed that, while Unimac passed the TCI standby claims on to Metrolinx, none of these claims were paid by Metrolinx. The Unimac claim against Metrolinx has been dismissed. Furthermore, none of the six standby invoices indicate that Metrolinx would have had reason to pay any of them in any event. In addition to the lack of evidence of the alleged costs already discussed, there is no evidence that implicates Metrolinx in any of them. Standby Invoices #1 and #2 give no explanation for the alleged delays other than that TCI was delayed. Standby Invoice #3 is stated to concern a Ministry of Labour stop work order that pertained to Unimac’s trench shoring safety issues. Metrolinx would not have had reason to pay that claim. Standby Invoice #4 is stated to concern Unimac’s lack of trench preparation for the TCI piping. Again, there was no reason for Metrolinx to have paid this claim. As stated earlier, Standby Invoices #5 and #6 concern alleged “offsite” and “onsite” standby charges. There is no explanation given for the “offsite” standby charges. As to the “onsite” standby charges, these were explained by Mr. Romanovich as pertaining to the late completion of the Project. Mr. Romanovich put much blame on Unimac for the Project delay and indicated that Unimac itself blamed Metrolinx. But there was no careful analysis or expert evidence from TCI as to the causes of the Project delay. There is, therefore, no evidence that any pay-when-paid agreement Unimac may have made with TCI on November 9, 2011 would have triggered a Unimac contractual obligation to pay the Standby Invoices.
[41] I will make another comment on this point. The Unimac payment of the TCI for the standby claim concerning the long weekend in May, 2011 I view as the exception that “proves the rule.” Concerning the May, 2011 standby claim there was clear evidence that TCI showed up on site with its workers and could not work because Unimac had not prepared the site. That is not the case with the other “offsite” standby claims which all are predicated on the notion that workers were paid for not attending at the site to maintain their availability. These “offsite” standby claims are unusual as they concern no site attendance. The fact that Unimac did not pay any of these claims, therefore, raises a natural skepticism that Unimac would not have gone any further than agreeing to a strict pay-when-paid provision concerning the “offsite” standby charges. As stated above, the evidence indicates that, at best, Unimac may have agreed to such a strict provision. As to the “onsite” standby charges, I will comment further below.
[42] Fifth, Mr. MacLellan made the forceful argument that, while the TCI work and schedule were on the critical path of the Project and while there was delay, there was no evidence that Unimac promised in the Subcontract to make the site available on every day of the TCI schedule. I agree that there was no evidence of such a promise in the Subcontract, and that the TCI standby claims appear to be based on such an alleged promise. This also detracted from the credibility of the TCI standby claim.
[43] Sixth, TCI’s calculations in the Standby Invoices are incomplete, contradictory and lacking in corroboration. They often accord neither with the Rate Sheet nor with the rationale for the standby claim. For instance, Standby Invoice #1 refers to four weeks of standby, but charges for only 3 weeks. In cross-examination, Mr. Romanovich had no explanation for this “discount.” Furthermore, he acknowledged that the stated rate of $150/hour for the supervisor was greater than what had been claimed in the standby claim for the May, 2011 long weekend that Unimac paid. Mr. Romanovich stated that he increased the rate simply because he “felt he was entitled to the increase.” In Standby Invoice #2 there is a weekly standby charge that is consistent with the Rate Sheet. There is then, however, a reduction of $2,700. The explanation for the reduction is that two welders are “no longer on standby.” What follows is a curious statement: “Left due to lack of work and progress onsite.” But the standby claim is predicated on the notion that the prized TCI workers were paid while being offsite. Why would there be no charges for welders leaving the site? There was no answer to this question.
[44] Other invoices had similar issues. In Standby Invoice #3 the applied daily standby rate, $1,560, is 54% of the daily standby rate in the Rate Sheet, and excludes a rig welder, a welder and all TCI equipment. In Standby Invoice #4 the applied daily standby rate, $1,990, is 69% of the daily standby rate in the Rate Sheet. In Standby Invoices #5 and #6 the “offsite” daily standby charge, $1,978, is 68% of the daily standby rate in the Rate Sheet, excludes the foremen and rig welders indicated in the Rate Sheet, and introduces new rates, namely ones for “crane and operator” and “welding rig and welder.” Mr. Romanovich explained these deviations from the Rate Sheet as being the result of his decisions to let certain workers go and make changes. But this contradicted the logic of the TCI standby claims, which is based on the notion that all TCI workers, being in high demand, had to be and were kept on standby offsite during delays. If some could be let go, why not the rest, as there was no work for them? There was no answer to this question. In Standby Invoice #7 there was also no calculation of the claim for the idle equipment. In cross-examination, Mr. Romanovich described this last claim as being for 22 days of idle plant and equipment at $300 per day. This rate is not shown in the Rate Sheet. In short, I had trouble following these calculations, which alone detracted from their credibility.
[45] Seventh, and most importantly, the standby claims in the end boiled down to calculations made by Mr. Romanovich. Therefore, his credibility was critical, and I found it lacking. He was a nervous witness. There was also the obvious fact that Mr. Romanovich is the principal of TCI, and, therefore, had a vital interest in the outcome of this trial. Given this reality, I expected TCI to have made more of an effort to corroborate Mr. Romanovich’s evidence. As you can see from my comments above, I did not find such corroboration.
[46] But what really detracted from Mr. Romanovich’s credibility, in my view, was the evidence of overreaching in the concept of “onsite” standby that came up with Standby Invoices #5 and #6. $118,332.47 (HST inclusive) of the TCI standby claim concerns “onsite” standby. This is 27% of the overall TCI standby claim. As stated earlier, I had trouble understanding this concept during the trial hearing as Mr. Romanovich confirmed that this claim was for full eight hour days of labour while that labour was actually working full-time on site. I had trouble understanding how this could be a “standby” charge.
[47] Messrs. Romanvich and Wiffen tried to explain the concept as turning on the late completion of the Project. Since these work days occurred after scheduled Project completion, so the argument went, each day of work represented a lost day of work before Project completion, or “standby.” As such, I found the concept speculative at best. If these were truly “lost days” that cost TCI money, why was there no timely TCI standby claim for those days when the alleged costs were incurred before Project completion, as there were with the offsite standby claims? There was no answer to this question. Furthermore, these alleged “lost days” seemed logically to have been for no more than “offsite” standby costs, as the argument appeared to be that there was no work for the workers when the work was originally scheduled. In any event, there was no evidence that the workers attended at the site on these earlier “lost days.” Yet, TCI’s “onsite” standby claim is for full eight hour days, namely the rate that applied when the workers actually attended the site and could not work. Finally, the argument also assumed a one-to-one correlation between days worked after scheduled Project completion and the earlier “lost days,” all without proof. I do not accept this proposition. Good contractors try to mitigate their losses. Therefore, had the evidence about these lost days been garnered, it might have shown that the alleged “lost days” were in fact used for other productive work or, at minimum, did not create cost for TCI. Rather than garnering this evidence, the “lost days” and associated costs were simply assumed to exist.
[48] Another explanation was floated for this claim, namely that it represented days on “standby” for other projects given the late Project completion. But this made no sense either. Such a claim is really for TCI’s damages for alleged lost revenue on other projects, not for standby charges for idle labour and equipment.
[49] In the end, I found this claim for “onsite” standby to be a naked attempt by Mr. Romanovich and TCI to inflate the TCI claim on the Bond and the holdback. It detracted significantly from Mr. Romanovich’s credibility.
[50] Therefore, for the reasons stated, I find that TCI has failed to meet its onus of proving its standby costs.
c) Has TCI Proven an Entitlement Under the Bond to its Alleged Standby Costs?
[51] There was much argument on this point. However, there was no dispute that it is a pre-condition to Bond entitlement that the claimant prove the standby costs alleged. As I have found that TCI failed to prove this point, I do not have to review the arguments concerning the Bond and the standby costs, and I do not do so.
[52] TCI has failed to prove its claim for standby costs recovery on the Bond.
d) Does TCI Have Lien Rights for its Alleged Standby Cost Claims?
[53] There was also much argument on this point. Again, there was no dispute that it is a pre-condition to lien entitlement that the claimant prove the standby costs alleged. As I have found that TCI failed to prove this point, I do not have to review the arguments concerning standby costs and lien rights, and I do not do so.
[54] TCI has failed to prove its claim for lien in relation to the standby charges.
VI. Conclusion
[55] I, therefore, deny the TCI standby costs claim in its entirety.
[56] Concerning the costs of this trial hearing, counsel advised, and I agreed to defer that issue to a separate hearing as to the costs of the entire reference.