Court File and Parties

COURT FILE NO.: C-882-15 DATE: 2018/07/30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 1885332 Ontario Inc., c.o.b. as Master Trades Group, Plaintiff AND: James Ian Henderson and Rhianna Lee Henderson, also known as Rhianna Lee Jackiw, Defendants/Moving Parties AND: Erbsville Electrical Contractors Inc., Responding Party

BEFORE: The Honourable Mr. Justice G.E. Taylor

COUNSEL: No one appearing for the Plaintiff A. Patrick Wymes, Counsel for the Defendants/Moving Parties Mark A. Radulescu, Counsel for Erbsville Electrical Contractors Inc.

HEARD: June 27, 2018

Cost ENDORSEMENT

[1] On July 10, 2015, Erbsville Electrical Contractors Inc. registered a construction lien in the amount of $4,253.69 against property owned by the defendants. Erbsville Electrical took no steps to perfect its lien. On June 13, 2018, the defendants served Erbsville Electrical with a Notice of Motion returnable June 27, 2018 seeking, amongst other relief, an order discharging the lien registered by Erbsville Electrical. On June 26, 2018, Erbsville Electrical, registered an Application to Delete Construction Lien to remove its lien from against the defendants’ property.

[2] What remains to be decided as between the defendants and Erbsville Electrical is whether Erbsville Electrical is responsible for costs incurred by the defendants in bringing the motion to have the lien removed. Although not specifically sought in the Notice of Motion, the defendants in their written Costs Memorandum seek an order against Erbsville Electrical, on a joint and several basis, for costs incurred in obtaining an order vacating two other construction liens registered against the defendants’ property in relation to the same improvement which resulted in the Erbsville Electrical lien.

[3] By way of background, this matter came before me on a regular motions list. The plaintiff and another lien claimant did not appear to contest the motion. Accordingly, I made an order vacating their liens and fixing costs which were ordered to be paid jointly and severally. Counsel for Erbsville Electrical appeared on the return date of the motion and requested an opportunity to file responding material and written submissions on the issue of costs even though his client’s lien had been deleted the previous day. I acceded to the request of counsel for Erbsville Electrical and also granted leave to the defendants to file reply material and written submissions with respect to costs. The result was a 2 page, 9 paragraph affidavit from Erbsville Electrical and a 4 page, 22 paragraph supplementary affidavit from the defendants. The Costs Submissions of Erbsville Electrical were 5 pages and 17 paragraghs long while the Defendants’ Costs Memorandum was 6 pages in length consisting of 24 paragraphs.

[4] What strikes me as most significant about this proceeding is that the parties appear to have completely lost sight of rules 1.04(1.1) and 57.01(7) of the Rules of Civil Procedure. Rule 1.04(1.1) provides orders are to be made which are proportionate to the importance and complexity of the issues and the amount involved in the proceeding. Rule 57.01(7) directs that the court shall adopt the simplest, least expensive and most expeditious process for fixing costs.

[5] This was a motion to have a construction lien in the amount of $4,250 removed from title to the defendants’ property after Erbsville Electrical had taken no steps to perfect the lien for almost three years. When the motion was brought Erbsville Electrical removed the lien before the motion was argued.

[6] In my view it is not reasonable for a lien claimant to register a claim for lien, take no steps to perfect or remove that lien and then take the position that it should not be responsible for any costs incurred by the owner of the property to have the lien removed. On the other hand I am not prepared to make an order the effect of which is to make every lien claimant jointly and severally liable for the costs incurred by the owner with respect to all lien claimants even though a particular lien claimant has not taken any steps to move the lien action forward.

[7] Section 86 of the Construction Lien Act which is applicable to this proceedings specifically permits a cost award to be made against a party to a motion. Erbsville Electrical is a party to the defendants’ motion to have its lien removed. Erbsville Electrical therefore is liable to pay costs of that motion.

[8] The defendants are entitled to partial indemnity costs of this motion to be paid by Erbsville Electrical which I fix in the amount of $750 plus HST. I decline to order Erbsville Electrical to be jointly and severally liable for the costs which were ordered to be paid by the other two lien claimants.

G.E. Taylor J.

Date: July 30, 2018