Superior Court of Justice – Ontario

Court File No.: CV-22-0017-00
Date: 2025-04-02

Parties

Plaintiffs:
Tom Cardinal, as Trustee of the Ontario Provincial Council of Carpenters Benefit Trust Fund and Trustee and Agent for Cole Barrette, Markuu Heikanen, James Nazevsky, Michael Jakubowski, Rob Prystanski and for All Affected Members of the United Brotherhood of Carpenters and Joiners of America, Including Local 1669

Defendants:
1876048 Ontario Inc. O/A Nexgen Contracting
Con-Form Holdings Limited

Counsel

• M. Mazzuca for the Plaintiffs
• D. Zulianello for the Defendant, Con-Form Holdings Limited

Heard

At Kenora, Ontario, in Chambers, via written submission

Before

J.S. Fregeau

Endorsement on Costs

[1] This construction lien action settled. On January 15, 2025, the plaintiffs were granted leave, pursuant to Rule 23.01(b), to discontinue the action as against both defendants. Con-Form Holdings Limited (“Con-Form”) now seeks costs as against the plaintiffs only, pursuant to Rule 23.05(1).

[2] In May 2021, Con-Form contracted with 1876048 Ontario Inc., O/A Nexgen Contracting (“Nexgen”) for repair work to a building owned by Con-Form and located at 187 Johnson Avenue in Thunder Bay (the “Johnson Ave. Project”). Nexgen supplied labour and materials to the Johnson Ave. Project between May 31, 2021 and August 30, 2021. Nexgen invoiced Con-Form periodically and Con-Form paid the invoices in full when due.

[3] On December 8, 2021, the plaintiffs registered a construction lien in the amount of $45,000.00 against the title to 187 Johnson Avenue. On January 17, 2022, the plaintiffs commenced this action against the defendants. Con-Form crossclaimed against Nexgen for contribution and indemnity.

[4] On March 8, 2022 and April 5, 2022, Nexgen paid the plaintiffs $19,214.07 and $26,320.18 respectively, for a total of $45,534.25. For reasons that are not clear to me from the parties’ Costs Submissions, this matter proceeded thereafter, was scheduled for trial in the late fall of 2024, and apparently settled by way of a payment from Nexgen to the plaintiffs in the amount of $29,067.96.

[5] Con-Form now seeks costs from the plaintiff on a full indemnity basis in the amount of $27,343.35 or alternatively, on a substantial indemnity basis in the amount of $24,645.81, or, on a partial indemnity basis in the amount of $16,553.20 (all amounts inclusive of fees, disbursements and HST).

[6] Con-Form submits that the lien was not preserved in accordance with the Construction Lien Act (the “Act”) and was therefore invalid. Con-Form further submits that the lien amount was exaggerated. Con-Form contends that all amounts owing to the plaintiffs by Nexgen were paid shortly after the action was commenced, but that the plaintiffs nonetheless insisted that Con-Form deliver a Statement of Defence, attend several Pre-Trial Conferences, produce an affidavit of documents and Schedule “A” documents and respond to a Request to Admit.

[7] Con-Form submits that the plaintiffs registered an untimely lien in an exaggerated amount and caused Con-Form to incur costs in defending the action well after full payment had been received. Con-Form submits that this is deserving of an award of costs against the plaintiffs on a full or substantial basis.

[8] The plaintiffs submit that no costs should be awarded to Con-Form. The plaintiffs further submit that they are entitled to costs in the amount of $2,500 for reviewing and responding to Con-Form’s Costs Submissions. The plaintiffs submit that it collected the full value of its claim by way of its settlement with Nexgen and that the settlement was a product of the lien action commenced in January 2022.

[9] The plaintiffs submit that Con-Form contracted with Nexgen and that but for Nexgen’s default in payment to the plaintiffs, Con-Form would not have been liened and named in the action by the plaintiffs. The plaintiffs submit that it is strictly by operation of the Act and its lien that it was permitted to claim against Con-Form.

[10] The plaintiffs contend that Con-Form crossclaimed against Nexgen because of Nexgen’s failure to flow funds through to the plaintiffs. The plaintiffs submit that but for Nexgen’s failure to pay the plaintiffs, Con-Form would not have incurred any costs. The plaintiff submits that, in these circumstances, it is Nexgen from which Con-Form should be seeking costs.

[11] The plaintiffs also submit that this matter did not proceed to trial because it was settled. The plaintiffs submit that, as a result, there has been no findings that their lien was untimely or exaggerated, as alleged by Con-Form.

[12] I accept the submission of the plaintiffs that they should not be liable for Con-Form’s costs. Con-Form contracted with Nexgen for the supply of services and materials for the Johnson Ave. Project. The plaintiffs supplied labour as a component of Nexgen’s supply of services and materials for the Johnson Ave. Project. Con-Form paid Nexgen but NexGen did not pay the plaintiffs. The plaintiffs liened the Johnson Ave. Project and began an action against Nexgen, the contractor, and Con-Form, the property owner. Con-Form crossclaimed against Nexgen. The action settled two and one-half years later when Nex-Gen paid the plaintiffs what they were owed.

[13] I accept the submission of the plaintiffs that the validity of the lien and the issue of whether the lien amount was exaggerated have not been adjudicated. The fact that the lien remained on title until the action was resolved belies Con-Form’s submission that the lien was untimely and exaggerated.

[14] I accept the plaintiffs’ submission that but for Nexgen’s default in payment to the plaintiffs, the Johnson Ave. Project would not have been liened and Con-Form would not have been named in the action. Con-Form’s claim for costs is properly advanced against Nexgen and not the plaintiffs.

[15] Con-Form’s claim for costs as against the plaintiffs is dismissed. I order that Con-Form pay costs to the plaintiffs in the amount of $1,000, all in, for responding to Con-Form’s Costs Submissions.

“Original signed by”
J.S. Fregeau

Date: April 2, 2025