Court File and Parties
COURT FILE NO.: CV-18-77712/CV-18-78169 DATE: 2020/06/01 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: GTA General Contractors Ltd., Lien Claimant Karar Al-Najari, Lien Claimant
-and-
256613 Ontario Inc., Respondent
BEFORE: The Honourable Justice P. Kane
COUNSEL: S. Bond, Counsel for the Lien Claimants G.B. Aitken, for the Respondent
Costs Decision
[1] The defendant, 2566213 Ontario Inc., owns a condominium unit (the “Owner” and the “Unit”) in which Dr. Arasteh Carredi carried on his dentistry practice.
[2] The Owner on April 4, 2018, entered into a contract with GTA General Contractors Ltd. (the “Contractor”) for renovations to the Unit.
[3] The Contractor engaged Karar Al-Najari, (the “Subcontractor”), as project manager for the above renovations to the Unit.
[4] The Contractor and the Subcontractor (collectively the “Contractors”) each registered a lien against the Unit for unpaid labor and materials regarding their work on the Unit.
[5] The Owner by motion pursuant to sections 44, 45 and 47 of the Construction Act, R.S.O. 1990, c. C.30 (the “Act”), sought:
a. a declaration that the Contractor’s lien and the Subcontractor’ lien, respectively registered on August 13 and September 5, 2018 in the amount of $68,959 and $61,521, were not preserved or perfected in time and had therefore expired; b. an order that such liens therefore be struck and discharged against the Unit pursuant to s. 31(2), s. 34(1), ss. 36(1) and (3) and s. 45 of the Act; and c. an order that the $86,198.95 paid into court by the Owner as security to vacate such lines be paid out forthwith to the Owner.
[6] The Owner’s above motion was dismissed for the reasons indicated in the decision dated December 20, 2019.
[7] The Contractors are represented by the same law firm and jointly seek costs of the motion:
a. on a substantial indemnity scale, of $8,684, $1,129 HST and $155 of disbursements including HST, totalling $9,969; b. in the alternative on a partial indemnity scale, of $5,789, $752 of HST and $155 of disbursements including HST, which total $6,697; and c. $750 of costs plus HST for their cost submissions.
[8] The Owner filed a Cost Outline and a Bill of Costs which indicate legal fees including attendance in argument of the motion of $23,084 on a substantial indemnity scale, including HST and $984 for disbursements, including HST.
Analysis
[9] The Contractors submit that costs should follow their success in defeating this motion by the Owner and should be awarded on a scale of substantial indemnity as the Owner’s motion:
a. Was essentially a motion for summary judgment as indicated in the reasons determined by this Court; b. was inappropriately brought as the Owner knew the two liens were properly registered, or at least that there were issues requiring a trial; and c. delayed the trial and determination of the construction lien trial.
[10] On the issue as to whether the motion was interlocutory and therefore required leave, the Court held that the relief requested if granted would prevent this action from proceeding as a lien action. That outcome however would not have determined the contractual liability to the Contractors and entitlement to damages.
[11] Although successful in defending this motion, the Contractors unsuccessfully argued that the Owner’s motion should be dismissed as it was interlocutory, that the Owner had failed to seek s. 67(2) leave and that such leave should not be granted.
[12] The motion was dismissed because of the Owner’s failure to present sufficient evidence to establish that the contract was substantially performed as of June 18, 2018.
[13] The motion was also dismissed because of the Owner’s failure to establish that there is no trial issue:
a. as to the date of substantial performance under the contract; b. whether it on July 25, 2018, agreed to the Contractors’ continued performance under the contract and whether the Contractors’ performance thereafter continued; and c. whether the two liens accordingly were or were not preserved and perfected within the times limits of the Act.
[14] The Owner’s failure to present sufficient evidence to establish that there was no triable issue as to the validity of these lien claims and whether they were perfected within the time limits of the Act, dictated that such issues remained to be decided. Given those unknowns, it cannot be said that the Owner’s motion was an “unreasonable”, “audacious summary judgment motion”, which if granted “would have been ineffective to narrow the issues in the action: One-Way Drywall Inc. v. Lomax Management Inc., 2016 ONSC 2425, at paras. 6-10.
[15] The lack of success to dismiss this motion as interlocutory, as devoid of any potential merit and the issues required to be determined indicate that partial indemnity is the appropriate scale of costs.
[16] The amount claimed and recovered under R. 57.01(1)(a) of the Rules of Civil Procedure, are material in amounts however entitlement and recovery remain to be determined.
[17] The R. 57.01(1)(c) element as to complexity is met given summary judgment nature of the motion.
[18] The court accepts the importance of these liens, including their amounts, to the Contractors pursuant to R. 57(1)(d).
[19] The quantum of the Owner’s Bill of Cost and Cost Outline confirm the Contractors’ time expended, hourly rates and disbursements claimed.
[20] Ultimate success in this proceeding as between the parties remains to be determined.
Conclusion
[21] For the above reasons, the Contractors are awarded costs of this motion in the cause on a partial indemnity scale, in the amount of $6,700, including HST and disbursements.