2026 ONSC 21
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Dependable Mechanical Systems Inc. c.o.b. as Dependable Group of Companies v. Concord Adex Developments Corp., Reliance Construction Toronto Inc., BCIMC Construction Fund Corporation, Westmount Guarantee Services Inc. and Quadreal Estate Debt (Canada) GP Inc.;
BEFORE: ASSOCIATE JUSTICE C. WIEBE
COUNSEL: Ryan Hauk and Kayla Kwinter for Concord Adex Development Corp.;
Joseph Cosentino for Reliance Construction Toronto Inc.;
Jonathan Frustaglio for Dependable Mechanical Systems Inc. c.o.b. as Dependable Group of Companies;
HEARD: October 2, 2025.
REASONS FOR DECISION
1Concord Adex Development Corp. (“Concord”) and Reliance Construction Toronto Inc. (“Reliance”) move for an order under subsection 44(5) of the Construction Act R.S.O. 1990, c. C.30 (“CA”) reducing the amount of security posted to vacate the three claims for lien registered by Dependable Mechanical Systems Inc. c.o.b. as Dependable Group of Companies (“DMSI”) on the title to a Concord condominium project called “Block 22” by $21,365,879.31 plus HST, and reducing the amount of security posted for the single DMSI claim for lien on a Concord condominium project called “Block 15” by $722,796.20 plus HST. The basis for this aspect of the motion is that these amounts are only for cost escalations to which DMSI is not entitled. DMSI of course disputes this.
2When it was originally brought, this motion also included requests for further reductions of posted security under CA section 44(5) on account of subtrade claims for lien with their own posted security being subsumed in the above noted DMSI claims for lien, thereby creating double security for these subtrade claims for lien. This issue was also raised with respect to claims for lien registered by DMSI on the titles to Concord condominium projects called “Widmer” and “Sky.” The motion also included a request to reduce the security for costs portion of the security posted for the DMSI claims for lien on Block 22 to account for the now undisputed fact that that project fell under the old CA with its $50,000 limit on security for costs.
3When the motion was argued before me on October 2, 2025, I was advised that the parties were consenting to orders dealing with the subsuming and security for costs issues. Indeed, the parties subsequently sent me draft orders and consents in this regard for the DMSI claims for lien on Block 22 and Widmer, which orders I signed. I await the others. That leaves only the cost escalation issue concerning Blocks 22 and 15.
4There are three issues to be determined: (1) whether DMSI gave proper notice of and made a claim for its delay escalation costs; (2) whether the promise made by DMSI’s principal, Rajesh Ahuja, on January 13, 2023 not to pursue escalation costs after the Concord gratuitous payments of $9 million is binding; and (3) whether DMSI can prove the quantum of its claim.
a) Background
5The moving parties filed two affidavits sworn by George Radu, the project director with Reliance, and two affidavits sworn by Jason Ha, the vice-president of construction at Concord. DMSI filed an affidavit sworn by Mr. Ahuja. There was also a transcript of the cross-examination of Mr. Ahuja. The following undisputed facts were gleaned from the material.
6Concord was the developer of a high-rise condominium at 23 Spadina Avenue, Toronto (“Block 22”). There were four phases to this project: Phase 1 being the parking garage; Phase 2 being the podium; Phase 3 being Towers A and B above the podium to the mechanical transfer floor; and Phase 4 being Towers A and B above the mechanical transfer floor. Each phase had its own holdback and lien period.
7In 2019 Concord hired Reliance as its construction manager-at-risk to complete Block 22. On July 8, 2019 Reliance hired DMSI under four fixed price subcontracts (one for each phase) to do the mechanical work for this project. These subcontracts will be called “the B22 Subcontracts.” The B22 Subcontracts specified that there were to be no changes to the price due simply to cost increases, and that any claim for delay costs required timely notice in writing within 7 days of the commencement of the delay.
8The master schedule specified that Block 22 was to be substantially performed by July 5, 2023, namely a schedule of four years. There was significant delay. There were numerous changes that led to change orders and change directives. None of these concerned cost escalation, delay and overages. Reliance issued 27 schedule updates. The anticipated date of substantial performance was moved to August 6, 2025. Mr. Ahuja said in cross-examination that by 2021 he knew DMSI would not be complete by July 5, 2023.
9Concerning the other projects, on February 2, 2021 Concord contracted with DMSI to do the mechanical work on the high-rise condominium project at 28 Widmer Street, Toronto (“Widmer”). On June 1, 2021 Concord contracted with DMSI under a fixed price subcontract to do the mechanical scope on the high-rise condominium at 40 Esther Shiner Boulevard, Toronto (“Block 15”), with the fixed price being $41,000,000 plus HST. This will be called “the B15 Subcontract.” On March 31, 2022, Concord contracted with DMSI to do the mechanical work on the high-rise condominium at 391 Yonge Street, Toronto (“Sky”).
10By October, 2022 DMSI had done only 32% of its scope on Block 22, not the expected 90%. During this delay the cost of construction rose dramatically. The evidence of Mr. Ahuja was that the costs of mechanical scopes in the high-rise condominium market rose on average 60-70% during this time. There was though no formal DMSI claim for change or formal DMSI written notice of a claim for this escalation cost.
11In numerous emails and meetings starting in 2022 Mr. Ahuja raised the issue of cost escalation and DMSI’s need for help. On February 17, 2023 DMSI submitted work orders for January, 2023 work that contained higher labour rates due to cost escalation. Reliance rejected these rates but advised DMSI to track the rate increases for discussion with Concord at the end of the Block 22 project.
12There was delay concerning Block 15 as well, particularly concerning the predecessor work, namely the dewatering, structural, forming and concrete work. On October 27, 2022 DMSI advised that it had completed only 3% of its work and was suffering cost escalation due to the delay.
13The parties discussed assistance Concord might give DMSI for its escalation costs. DMSI shared financial records and information. Eventually, the Concord agreed to give $9 million. During these discussions, by email dated January 13, 2023, Mr. Ahuja made the following promise: “. . . I can confirm that DMS will not be requesting any additional support (excluding change work in normal course of construction) for escalation beyond the $9M being provided by Concord for completion of the 3 projects (i.e. Block 22, Block 15 and Widmer).” In cross-examination Mr. Ahuja said that this promise was made “under duress.”
14On April 12, 2023 Concord agreed to provide DMSI with the $9 million of additional funding through four “Gratuitous Payment Agreements” as follows:
on Block 22 $3 million at specified milestones;
on Block 15 $2 million at specified milestones;
on Widmer $2 million at specified milestones; and
on a project known as “Block 11” located at 25-27 McMahon Drive, Toronto, $2 million at specified milestones.
15There was security for these payments. DMSI agreed to give a company related to Concord, One West Holdings Ltd., a subscription for 140 preferred shares issued by DMSI. The “gratuitous payments” were made, but often without the milestones being reached.
16The cost escalation issues, however, continued for DMSI, particularly on Block 22. In 2024 DMSI asked for more financial assistance. It submitted further documents in this regard. Concord asked for lists of unpaid suppliers, which DMSI gave. From May to July, 2024, Concord directly paid DMSI suppliers about $3.5 million of additional funds to keep the projects moving.
17The problems continued. DMSI disclosed that it had debts to CRA and unions. Subtrades were not paid. In August, 2024 DMS appeared to withdraw labour. Concord served notices of default on all the projects. In late August and early September, 2024 Concord terminated DMSI’s right to work on the projects.
18On September 13, 2024 DMSI registered a claim for lien on Block 15 in the amount of $5,618,512.88. On the same day DMSI registered claims for lien on Widmer and Sky. On September 30, 2024 DMSI registered four claims for lien on Block 22 as follows: concerning Phase 2 a claim for lien in the amount of $8,460,983.99; concerning Phase 3 a claim for lien in the amount of $14,026,528.17; concerning Phase 4 a claim for lien in the amount of $6,500,546.23. These total $28,988,058.39. There were also claims for lien from DMSI subtrades.
19On October 30 and November 5, 2024 Concord obtained orders vacating the DMSI claims for lien on Block 22. On November 26, 2024 Concord obtained an order vacating the DMSI claim for lien on Block 15. Around this time, Concord also obtained vacating orders for the other claims for lien on the various titles.
b) Governing test
20There was an issue as to the governing test under CA section 44(5), the subsection that authorizes the court to reduce posted lien security “where it is appropriate to do so.”
21In Structform International Ltd. v. Ashcroft Homes Construction Inc., 2013 ONSC 4544 at paragraphs 11 and 12, Master McLeod (as he then was) stated the test on such a motion is “similar to the test on a summary judgment motion.” He stated that the “court must be satisfied on the basis of the motion materials that there is no reasonable prospect of the Plaintiff proving a lien for the amount it claimed.”
22The focus on such a motion is the lien remedy, not as much on the breach of contract or other claims. In paragraph 13, Master McLeod stated “that the defendant must be able to show on a balance of probabilities that there is no genuine issue requiring a trial for the court to be able to conclude that the lien is inflated.”
23The defendants asserted that this is now an outdated test, and that there is an updated test outlined by Justice Boswell in Pentad Construction Inc. v. 2022988 Ontario Inc., 2021 ONSC 824. His Honour stated this in paragraph 88: “. . . I find that s. 44(5) offers a mechanism by which to determine, in a summary fashion, whether the amount claimed in a Claim for Lien is reasonable.”
24In paragraph 89, His Honour outlined the evidentiary steps on such a motion: (a) the moving party “bears the legal and persuasive burden to establish that there is no reasonable basis for the amount claimed”; (b) the responding party “bears an evidentiary burden to establish that there is a reasonable basis for the amount claimed”; (c) each party must “put their best foot forward” in terms of the evidentiary record; and (d) “the court is entitled to assume that the record before it contains the core substance of the evidence that the parties will present at trial.”
25I do not see a contradiction between these findings. Justice Boswell in Pentad simply gave more particularity as to the steps to be followed on a subsection 44(5) motion. The core test in the motion before me is the following: the moving parties must prove on a balance of probability with their best evidence that there is no reasonable basis for the amount claimed, with the responding party having an evidentiary burden to use its best evidence to show that there is a reasonable basis. I will apply this test.
c) Notice
26It is undisputed that the escalation costs in issue have the following features: material and equipment costs that resulted from price inflation; and labour costs that resulted from both price inflation and an increase in manhours over what was expected. It is also undisputed that the contracts that governed DMSI’s work on Block 22 and Block 15 were fixed price contracts that expressly prohibited claims for increased compensation due to price inflation. If not expressly prohibited, the Divisional Court has made it clear that a fixed price contract implicitly prohibits claims for price inflation; see HMI Construction Inc. v Index Energy Mills Road Corp., 2017 ONSC 4075 at paragraph 16.
27But DMSI ties its escalation claims to delay. That there was delay of the Block 22 project is clear from the record. The schedules issued by Reliance moved the anticipated date of substantial performance of that project from July 5, 2023 to August 6, 2025, namely over two years. The evidence also shows that DMSI’s work on Block 15 was significantly delayed. DMSI blames Concord and Reliance for these delays and argues that it was these delays that caused the subject escalation costs. Its claims are in the nature of a “total cost” claims for delay costs, namely a comparison between what DMSI anticipated its costs to be and what those costs ended up being.
28The moving parties argue that there was no notice of delay as required by the B22 and B15 Subcontracts, and that this is a complete bar to the DMSI escalation claim concerning Block 22. The B22 Subcontracts specify in SCC 6.5.1 that if DMSI is delayed by the owner, consultant or contractor, it is entitled to an extension for such reasonable time as DMSI and the contractor agree is a reasonable time of the delay and be reimbursed by the contractor for the “reasonable costs” incurred by DMSI for such delay. SCC 6.5.4 specifies that there will be no such extension unless “Notice in Writing” of the cause of the delay is given to the contractor not later than seven working days after the commencement of delay, and that with a continuing cause of delay one such notice is required. SCC 6.6(i) specifies that, if DMSI intends on making a claim for an increase in the subcontract price, it must give “timely Notice in Writing of intent to claim to the other party.” The B15 Subcontract has similar provisions in its general conditions. I will focus on the B22 Subcontract given the size of the DMSI Block 22 escalation claim.
29DMSI points to an email Mr Ahuja wrote to Concord on October 27, 2022 and argues that this provides a reasonable basis for the notice and claim requirement. This email addresses issues on Blocks 22, 15, 11 and Widmer. It indicates that DMSI’s work on all these projects is delayed as follows: for Block 22, it says that DMSI has completed and invoiced only 32% of the overall contract price; for Block 15, it says that DMSI has completed and billed only 3% of the contract value. The email goes on to say that DMSI is incurring significant escalation costs concerning its equipment and material on these projects: concerning Block 22 it says that DMSI has absorbed about $1.45 million of such costs; concerning Block 15, it says that it anticipates $6.6 to $8 million of overages to complete the project. It says that DMSI continues to absorb increased labour costs due to recently concluded union labour agreements. It then “requests” increases in each of the B22 and B15 Subcontract prices of $6 million plus overages for fan coils and bathtubs. It also requests much smaller increases for Widmer and Block 11. Concerning Block 22, the email proposes a separate, confidential agreement, and rejects the idea of making the payments loans. The email makes it clear that DMSI will be unable to complete its work if these monies are not paid.
30This email was followed by a discussion between Concord and DMSI that was reflected in emails from Mr. Ahuja to Concord dated December 1, 2022 and January 8, 2023, a discussion that resulted in the $9 million of additional funding from Concord to DMSI under the Gratuitous Payment Agreements. DMSI made financial disclosure to Concord. After the payments, Mr. Ahuja continued to make “requests” for funding to offset the acceleration costs, as reflected in his emails of June 6 and July 24, 2024.
31I am not satisfied that the moving parties have met their onus of proving, on a balance of probabilities, that there is no reasonable basis for the DMSI claim on this ground. First, the fact that the October 27, 2022 email was in email form is immaterial. In Article 7.1 the B22 Subcontract specifies that notices can be given by email.
32Second, the fact that the October 27, 2022 Ahuja email does not specify a “cause of delay” is also, in my view, immaterial for the purposes of this motion. Mr. Radu indicated that on Block 22 Reliance issued 27 schedule updates to subcontractors, updates that moved the anticipated substantial performance date of the project out over two years from July 5, 2023 to August 6, 2025. Mr. Radu blamed DMSI for a “portion” of this delay, but not all of it. It appears that Reliance, as construction manager, was well aware of the project delays and the causes of them. Whether the moving parties needed the DMSI notice to specify a “cause for delay” in these circumstances is at minimum an arguable point.
33Third, whether the Ahuja October 27, 2022 email was given within seven working days of the commencement of the delay is unclear based on the evidence. The moving parties point to the admission Mr. Ahuja made in cross-examination that he was aware by 2021 that DMSI would not be completed by the original deadline of July 5, 2023. Such awareness is one thing. But there was no evidence on this motion as to when the delay that arguably produced the DMSI escalation costs in fact commenced. Neither party produced expert or other evidence as to the causes and effects of the delay. In these circumstances, I am not prepared to find on this section 44(5) motion that the DMSI notice was untimely.
34Fourth, whether the Ahuja October 27, 2022 email amounted to a “claim” is also arguable. Mr. Ahuja indeed used the word, “request,” not claim. In my view, this distinction is immaterial for the purpose of this motion. The gravity projected by the email was clear, namely that DMSI could not continue working without payment of its acceleration costs. That it was taken with such gravity by the moving parties is evidenced by the fact that they subsequently entered into discussions with DMSI that led to the Gratuitous Payment Agreements and the payments thereunder, and indeed the payments Concord made to DMSI suppliers in 2024 after further discussions.
35Fifth, neither side argued that there was more than one “cause of delay.” Again, there was no expert or other evidence as to the cause and effect of the delay. As a result, for the purpose of this motion, only one notice was necessary in accordance with B22 Subcontract SCC 6.5.4.
36Sixth, the payments Concord made to DMSI on account of its escalation costs were not anywhere near what Mr. Ahuja stated in his emails was what DMSI was suffering in this regard. That discrepancy arguably laid the foundation for DMSI’s present claim.
37The moving parties referred me to the decision of Justice Chozik in Elegant Façade Inc. v Broccolini Construction (Toronto) Inc., 2021 ONSC 8336. This was also a motion by a contractor seeking to reduce the security posted for a subcontractor’s claim for lien under CA section 44(5). The subcontractor’s claim for lien contained a huge amount for “Alleged Forced Scopes,” which the subcontractor alleged was extra work the contractor forced the subcontractor to perform. One of the issues was notice. For extras, the Subcontract required notice plus a detailed breakdown of the estimated costs 15 days prior to the extra work. For any claim for an increase in the contract price there needed to “timely” written notice of an intent to claim. The subcontractor gave no notice, at all. It filed invoices, time sheets and other backup. This absence of notice was one of the reasons the judge reduced the security stating that “grumblings of a contractor are not sufficient to constitute notice.”
38The Elegant case is clearly distinguishable from the case before me. In the case before me there was arguably a written notice and a claim that had sufficient characteristics of a proper notice and claim for delay costs under the B22 and B15 Subcontracts. This is not a case where notice was no more than that of a “grumbling contractor.”
d) Promise
39The moving parties argue that the DMSI claim for escalation costs represents a breach of the promise Mr. Ahuja gave to Concord by email on January 13, 2023 not to claim any additional support for escalation costs beyond the $9 million funded by Concord pursuant to the Gratuitous Payment Agreements. That Mr. Ahuja made this promise is undisputed. The question is the effect of this promise and its binding nature.
d.1) Contract condition
40Was the promise an enforceable condition of the Gratuitous Payments Agreement? There is clear evidence that the Gratuitous Payment Agreements were the result of an agreement reached between the parties. The payments were described in the Agreements as gratuitous “payments” Concord may make, not loans. But the parties did agree that DMSI would give security for these payments in the form of a separate Subscription Agreement with One West Holdings Ltd., a company related to Concord, whereby One West would receive $7 million worth of preferred shares in DMSI. The Concord payments were made, and the preferred shares were issued.
41In his reply affidavit, Mr. Ha raised for the first time the January 13, 2023 email promise from Mr. Ahuja. Mr. Ha stated that Concord requested this promise “as a condition for Concord providing financial assistance.” But there was no corroboration for that statement. The January 13, 2023 Ahuja email itself makes no reference to such a Concord demand. In cross-examination, Mr. Ahuja admitted sending the email and making the promise. He added that he made the promise “under duress.” However, he did not articulate the source of that “duress.” He never stated that it was the result of any pressure or demand exerted by the moving parties.
42Furthermore, the Gratuitous Payment Agreements themselves dated April 10, 2023 do not state that these gratuitous payments were made on condition of the Ahuja promise. Indeed, the agreements go to some length to describe the payments as being made by Concord “without any obligation to do so.” The most that agreements state is the following: in exercising its “unfettered discretion,” Concord will act reasonably and in good faith, considering DMSI’s efforts and results in finishing its work without claims. This is a statement that Concord will make these payments freely and based on DMSI’s future performance, not on the Ahuja promise.
43This leads me to the following conclusion. Based on the evidence, it remains an open question, in my view, as to whether the Ahuja promise was indeed a collateral representation that formed a condition of the Gratuitous Payment Agreements thereby barring the DMSI present claim for escalation costs, or whether it was, like the descriptions of the gratuitous payments themselves, a gratuitous statement with no legal effect.
d.2) Waiver
44Was the promise a waiver? The moving parties also argue that, by virtue of the January 13, 2023 promise, DMSI waived its right to pursue a further escalation cost claim. The Court of Appeal in Technicore Underground Inc. v. Toronto (City), 2012 ONCA 597 in paragraph 63 described the test for waiver as follows: “Waiver occurs when one party to a contract (or proceeding) takes steps that amount to foregoing reliance on some known right or defect in the performance of the other party. It will be found only where the evidence demonstrates that the party waiving had (1) a full knowledge of the deficiency that might be relied on and (2) an unequivocal and conscious intention to abandon the right to rely on it. The intention to relinquish the right must be communicated.”
45The Ahuja promise of January 13, 2023 has all the characteristics of such a waiver. He had full knowledge of the DMSI alleged right to pursue its escalation costs claim and unequivocally abandoned that right in the email, an email that was sent to Concord. Mr. Ahuja’s claim of “duress” does not undermine this conclusion. He did not attribute the “duress” to the moving parties. The “duress” appears to stem from the ongoing general price inflation for labour and material that DMSI was suffering.
46The difficulty I have here is the evidence on this motion (that is not disputed) showing that both parties did not subsequently rely on the January 13, 2023 “waiver” by DMSI. On the one hand, DMSI resumed asking for more escalation costs support in 2024 in order to keep working. On the other hand, and most importantly, Concord appears not to have relied on or enforced the January 13, 2023 “waiver” in response. Instead, it made payments totaling $3.5 million to DMSI’s suppliers from May to July, 2024, payments which included escalated costs for materials. This was done no doubt, again, to keep the projects going.
47In short, Concord may well have waived the DMSI waiver. This is a real issue that needs to be determined with a more complete evidentiary record.
e) Quantum
48The moving parties make two arguments about the quantum of the DMSI escalation costs claim: (a) being in the nature of a modified total cost claim, the DMSI claim for escalation cost must fail as DMSI cannot product its tender documents; and (b) DMSI has not produced an expert analysis of the causes of the delay.
49Concerning the first point, DMSI admitted losing its tender documents. As a result, it built the quantum of its escalation claim based on estimates and assumptions without involving originally estimated costs as shown in its tender documents. For materials, it took the total of what it paid for materials (which it supported with invoices) and claimed 40% of same, stating that this was a conservative estimate of the unexpected price increases as the prices for materials increased from 140% to 220% during DMSI’s work on Blocks 22 and 15. Concerning equipment, DMSI appears to have estimated the escalation costs as a portion of its total equipment costs; but it is not clear on what basis that estimation was made. Concerning Block 22, DMSI then allocated the totals derived as between the phases on a pro rata basis according to the Subcontract prices.
50Concerning labour, DMSI made two calculations. It calculated the difference between actual labour costs it incurred and what those hours should have cost based on the rates that applied during the periods when the work should have been done according to the original schedule. In addition, DMSI included a calculation of the additional labour hours that it says it incurred due to the delay by comparing its actual labour hours with what it originally estimated based on its tender. It has not included shop prefabrication work in its calculations.
51I accept that there are serious difficulties with the quantum of DMSI’s escalation claim. The claim is based on a modified total cost analysis, namely a gross comparison between what DMSI actually incurred in costs and what it expected to pay. I am aware that the courts are skeptical of the crudeness of this approach to delay claims. Furthermore, without the tender documents, this type of analysis will indeed be that much more imprecise than it otherwise would be. But the total cost approach is not prohibited. Also, as Mr. Frustaglio pointed out, the task of determining the anticipated costs baseline can be met by referring to the “contract value” figures in the DMSI billing applications and by using expert evidence to determine the anticipated costs.
52Ms. Kwinter also pointed out other failings. For instance, she made the valid point that the labour escalation costs and labour overages overlap without the exact overlap being identified. She pointed out that DMSI provided no backup for the labour escalation costs such as time sheets.
53This may all be the case, but the purpose of this motion is not to have DMSI prove its claim for lien. The point is to determine whether there is a reasonable basis for the claim. DMSI has provided backup for its material and equipment costs, and, while the time sheets were not disclosed, it provided contemporary lists of the labour hours that were spent. It provided the relevant collective agreements. There can be no doubt, based on the evidence, that DMSI incurred costs well above the contract values in its billing applications.
54Concerning the second point of the moving parties, namely the point about causation, Ms. Kwinter did not provide me with any authority for the proposition that to defeat a section 44(5) motion concerning a claim for lien for delay damages, the lien claimant must produce a primary (not responding) expert’s report showing that the defendants caused the delay. If anyone has that burden, it is the moving parties who have the “legal and persuasive burden” to prove that the claim for lien has no reasonable basis. Had the moving parties produced a delay expert’s report showing no fault on their part, DMSI would have indeed been in a difficult position had it not responded in kind with a responding delay expert’s report. That did not happen. The fact of the matter is that at this point neither party appears to have obtained such expert’s reports. I presume that they have put forward their best existing evidence, as is their legal obligation on such motions.
55In conclusion, concerning this issue, I reiterate what Justice J. M. Johnston said in Lennox Snow Fence v Clarida, 2016 ONSC 6060 in paragraph 45:
As discussed in some of the case law, a Motion under the security provisions of the Construction Lien Act, is not the venue for determining the complex issues of contested facts going to the very merits of the Claim. Motions to reduce security under Section 44(5) of the Act cannot succeed where there are genuine issues of fact that require a trial to determine whether the entire amount claimed or some lesser amount is appropriate. Only where the evidence clearly and unequivocally proves that the lien as registered is excessive or improper should a Court reduce or release the security at the interlocutory stage. A Motion is not a substitute for lien trial.
56The evidence on this motion does not prove to me “clearly and unequivocally” that the quantum of the DMSI is excessive and improper. I, therefore, am not prepared to reduce the DMSI claim for lien on this ground.
f) Conclusion
57For these reasons, I dismiss the remainder of this motion.
58Concerning costs, as ordered, the parties filed costs outlines on October 3, 2025. The moving parties’ costs outline shows $132,370.35 for actual costs, $107,822.23 for substantial indemnity costs and $83,274.11 for partial indemnity costs. The DMSI costs outline shows $41,094.56 in actual costs, $32,931.28 in substantial indemnity costs and $24,767.99 in partial indemnity costs.
59I strongly encourage the parties to settle the issue of costs. DMSI is the successful party and appears to deserve costs. If the parties cannot resolve this issue, the following must be done: DMSI must serve and file written costs submissions of no more than three pages on or before January 14, 2026; the moving parties must serve and file responding written costs submissions of no more than three pages on or before January 26, 2026; and DMSI must serve and file any reply written costs submissions of no more than one page on or before January 30, 2025.
DATE: January 2, 2026 _____________________________
ASSOCIATE JUSTICE C. WIEBE