Senso Group Building Supplies Inc. v. 57-63 Finch Developments Inc., 2026 ONSC 2235

COURT FILE NOS.: CV-21-672215 & CV-21-674170

DATE: 2026-04-15

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF the Construction Act, RSO 1990, c. C.30, as amended

BETWEEN:

SENSO GROUP BUILDING SUPPLIES INC.

J. Frustaglio, for the plaintiff

Plaintiff

• and -

57-63 FINCH DEVELOPMENTS INC., DC& F CORP., ROMSPEN INVESTMENT CORPORATION and WESTMOUNT GUARANTEE SERVICES INC.

D. Stoddard, for the defendant, DC& F Corp. D. Martino, representative of the defendant, 57-63 Finch Developments Inc.

Defendants

AND BETWEEN:

TMAP HOME SOLUTIONS PLUS INC.

S.A. Hussain, for the plaintiff

Plaintiff

• and -

57-63 FINCH DEVELOPMENTS INC., DC& F CORP., ROMSPEN INVESTMENT CORPORATION and WESTMOUNT GUARANTEE SERVICES INC.

D. Stoddard, for the defendant, DC& F Corp. D. Martino, representative of the defendant, 57-63 Finch Developments Inc.

Defendants

HEARD: In writing

REASONS FOR DECISION ON COSTS AND INTEREST

Robinson A.J.

[1] When I released my reasons for judgment from the trial of the lien actions by Senso Group Building Supplies Inc. ("Senso") and TMAP Home Solutions Plus Inc. ("TMAP"), which were heard together, I invited the parties to make earnest efforts to resolve costs of the two actions, as well as calculating pre-judgment interest on the judgment amounts granted in favour of each of Senso and TMAP. I further encouraged the parties to agree on an appropriate form of draft interim report. No agreement was reached.

[2] Each of Senso, DC& F Corp. ("DC&F"), and 57-63 Finch Developments Inc. ("Finch") and each of TMAP, DC&F, and Finch seek costs against one another arising from the two trials. Both Senso and TMAP seek interest on the judgments granted in their favour pursuant the Courts of Justice Act, RSO 1990, c C.43. The interest calculations of Senso and TMAP have not been challenged by DC&F or Finch in their written submissions.

a. Analysis of costs claims

[3] The costs claims advanced by the parties against one another are somewhat nuanced and complex, to say the least. My direction was that primary submissions of the parties should not exceed six (6) pages (excluding any attachments). Each of the parties ignored that direction. Some broke up their submissions into separate documents by party. Others used single-spaced formatting with adjusted margins to squeeze in additional submissions.

[4] Frankly, the task was to be succinct and focus on what mattered most to costs of the actions, including trial. In my view, all parties failed at that. As a general comment, I found the parties' written submissions to be repetitive and, at times, rambling.

i. Position of the parties

[5] The parties' respective costs claims against one another are as follows:

(a) Senso seeks its substantial indemnity costs of the action jointly and severally against both DC&F and Finch in the amount of $127,632.93, including HST and disbursements, plus an additional $6,000, including HST, for its costs submissions;

(b) TMAP seeks its partial indemnity costs in the amount of $108,940.83, including HST and disbursements, seemingly allocated between DC&F and Finch as $62,284.69 against DC&F and $52,847.83 against Finch (including what seems to be a joint and several disbursements claim);

(c) DC&F seeks (i) several liability from Finch for the costs of both Senso and TMAP, with Finch responsible for at least 75-80% of their costs, and (ii) one-half of its own partial indemnity costs against Finch for Senso's action in the amount of $37,038.82, including HST and disbursements, and for TMAP's action in the amount of $23,607.32, including HST and disbursements; and

(d) Finch seeks (i) several liability from Finch for Senso's action, with DC&F fully responsible for Senso's costs or, alternatively, Finch liable for only a modest portion of Senso's costs, (ii) substantial indemnity costs against TMAP and DC&F in the amount of $112,356.18, (iii) partial indemnity costs against DC&F in the amount of $90,718.62 for Senso's action, and (iv) partial indemnity costs against DC&F in the amount of $83,928.64 for TMAP's action.

[6] In addition, DC&F asks that any costs awarded to it be paid from the security posted to vacate TMAP's lien by Kaleido Developments Inc. ("Kaleido"), a related entity to Finch. Senso similarly asks that its costs and interest be paid from the balance of security for its lien and, if necessary, from the security for TMAP's lien. Those requests are, essentially, a request to vary the decision at para. 107(b) of my reasons where I found and directed that the security for TMAP's lien should be paid out of court given my finding that TMAP's lien had expired. Finch opposes any such order to use security for TMAP's lien to pay interest or costs of Senso or DC&F.

ii. Claims against TMAP security

[7] I begin with the requests by DC&F and Senso to recover costs and interest from the security posted for TMAP's lien. I have no hesitation in rejecting both requests. The arguments advanced by both DC&F and Senso are, in my view, untenable at law and contrary to the scheme of the Construction Act, RSO 1990, c C.30 and its predecessor legislation, the Construction Lien Act (the "CLA"). As noted in para. 11 of my reasons for judgment, the CLA continues to apply to the subject improvement and these lien actions.

[8] With respect to DC&F, it has no standing in its capacity as a defendant to claim recovery of its costs against any of the security in court. None of the case law that it cites supports its position. All of the cases deal with the pooling provision in s. 44(9) rule 2 of the CLA, which sets out that lien security is pooled for all lien claimants "and shall be distributed among all lien claimants in accordance with the priorities provided for in section 80" (emphasis added). No provision of the CLA contemplates lien security being for any party other than lien claimants. None of the case law cited by DC&F says otherwise. I am also unaware of any case law permitting a non-lien claimant to recover costs from lien security. In my view, such a result would be contrary to CLA, which quite expressly contemplates the mandatory return of security where a lien is declared expired: see CLA, ss. 45(3) and 46(4).

[9] With respect to Senso, while security is pooled for the benefit of all lien claimants, Senso had full security for its lien and is entitled to enforce its proven lien against that security if it is not paid. The decision in Carter Tile Contractors Inc. v. Ben-Zvi, 2005 42482, cited by Senso, does not assist its argument. That case dealt with excess security for the same proven lien, not a different lien. As set out in para. 124 of Master Sandler's decision, there was a surplus of $2,568 in security for the principal lien, whereas the total costs award exceeded the security for costs portion by $2,458. Master Sandler held that the balance of security could be used to satisfy the unsecured portion of costs and some pre-judgment interest. That is not the same as accessing lien security posted to vacate a completely separate lien to pay non-lienable costs and interest amounts found owing that exceed security in court for the subject lien.

[10] What Senso is trying to do is, in effect, increase security for its lien beyond what is prescribed by s. 44(1) of the CLA in circumstances where there is no cogent evidence that Finch cannot or will not pay any costs awarded against it. Moreover, while Kaleido is a related entity to Finch, it is still a separate legal entity. No argument has been advanced for why Kaleido, a non-party, should effectively be held liable to pay a costs award against Finch in another lien action simply because the two entities are acknowledged to be related.

[11] TMAP's lien was declared expired. The party posting the security for that expired lien – Kaleido – is entitled to return of the security. No convincing or legally tenable argument to do otherwise has been advanced. For these reasons, the security posted by Kaleido to vacate TMAP's lien shall be paid out as I have already directed.

iii. Senso's costs

[12] Senso was completely successful against both DC&F and Finch at trial and is entitled to its costs of the action. It seeks substantial indemnity costs against both DC&F and Finch, jointly and severally, on the basis that it was wholly successful at trial on each of the six issues identified in my reasons for judgment as they relate to Senso's lien and lien action.

[13] DC&F was unsuccessful in its pay-when-paid defence. It should be liable to Senso in costs. Finch's costs liability is more complex. However, I agree with Senso that Finch was unsuccessful in opposing Senso's claim at trial and should be liable for Senso's costs.

[14] Although DC&F did have the primary role in opposing Senso's lien throughout the action until withdrawing most of its defences before trial, Finch was not an impartial defendant. It, too, actively challenged the validity of Senso's lien throughout the litigation. When DC&F withdrew its defences, Finch still advanced positions and arguments at trial against Senso having supplied the claimed services and materials and challenging the quantum and timeliness of Senso's lien. Finch further maintained that its statutory holdback obligation was less than the aggregate amounts claimed in the liens of Senso and TMAP.

[15] Finch submits that I should weigh the fact that DC&F had the direct contractual relationship with Senso and was unsuccessful in its contractual defence at trial. That fact is immaterial. Senso pursued two claims at trial: a lien claim and a contract claim. In its lien claim, Senso has a statutory claim against Finch as owner regarding the holdbacks that it was required to retain under the CLA. That liability is separate from any liability of DC&F and is not dependent on privity of contract. While Finch was entitled to challenge Senso's lien, and maintain those challenges at trial, by doing so it became exposed to an adverse costs award.

[16] Finch was unsuccessful in all of its trial positions against Senso. Senso's lien was fully proved to the extent of the preserved quantum. Finch's holdback liability was also proven to be more than Senso's lien, making Finch fully liable to Senso. I fully rejected Finch's position on holdback. In my view, Finch's position on holdback, including deductions for amounts paid to trades that had not liened, was not legally tenable. Finch ought to have known its holdback obligation exceeded Senso's claimed lien amount, particularly given the admissions at trial of Finch's principal, David Martino, about the value of work performed by DC&F. That admission is coupled by a prior acknowledgment by Finch's former lawyers that, as of September 2021, minimum holdback was at least $204,027.

[17] Had DC&F continued to oppose Senso's claim and Finch taken no position at trial, Finch may well have been in a different costs position. That is not the case, though. Finch instead assumed the mantle of opposing Senso's lien when DC&F withdrew its defences. It also opposed Senso's lien and claim against holdback throughout the litigation. In my view, Finch is unquestionably liable to Senso for its costs of the action.

[18] On the other side, DC&F's withdrawal of its defences (other than the alleged and unsuccessful pay-when-paid defence) and supporting Senso at trial does not insulate DC&F from an adverse costs award. As I discussed at para. 18 of my reasons, DC&F withdrew its defences against both Senso and TMAP. It admitted the quantum, lienability, and timeliness of their liens and the contract amounts claimed. DC&F's representatives provided trial evidence in support of Senso's lien (and TMAP's lien). Nevertheless, I do not agree with the submission that DC&F "was only involved in one small issue in Senso's entire lien action". While that may have been true at trial, it was not true throughout the litigation. DC&F's support of Senso and TMAP at trial was in contrast to DC&F's position in litigation up to trial, including in this reference, so much so that it led to an objection by Mr. Martino at trial about unfairness to Finch from the last-minute position change by DC&F.

[19] Based on the record before me, DC&F's support of Senso (and TMAP) was not part of any settlement. I have been directed to no specific agreement pursuant to which DC&F agreed to support its subcontractors at trial. DC&F could have provided support to them based on negotiated terms, which could have addressed costs of the action to date. It did not do so.

[20] In my view, late support for Senso and TMAP does not change the fact that DC&F defended both actions and opposed validity of Senso's claims and TMAP's claims in the years leading up to trial. The entire litigation landscape would have been different had the only dispute been between Finch as owner and Senso and TMAP as lien claimants, with their claims fully supported by DC&F. Put simply, it is far from clear that Finch would have so staunchly challenged Senso's supply of services and the quantum and timeliness of its lien at trial had DC&F supported Senso from the outset.

[21] With respect to the scale of costs, I accept Senso's position and find that substantial indemnity costs are warranted here. I have broad discretion as to costs under s. 86(1) of the CLA, including awarding costs on a substantial indemnity basis. Typically, awarding costs on an elevated scale is justified in only very narrow circumstances, namely where an offer to settle is engaged or where the losing party has engaged in behaviour worthy of sanction. Substantial indemnity costs is the elevated scale of costs normally resorted to when the court wishes to express its disapproval of the conduct of a party to the litigation: Net Connect Installation Inc. v. Mobile Zone Inc., 2017 ONCA 766 at para. 8.

[22] I reject DC&F's submission that there must be reprehensible or abusive conduct to support substantial indemnity costs in a lien action. Lien actions are intended to be of a summary character: CLA, s. 67(1). That did not happen here. I agree with Senso that, as this litigation progressed, DC&F had the option to pay what it owed to Senso in contract, but instead decided to pursue an untenable pay-when-paid defence. Finch also could have sought to pay Senso from its holdback obligation, but instead decided to pursue an untenable defence that its holdback liability was less than Senso's claim. In my view, the core dispute that stopped Senso from being paid had nothing to do with Senso, but rather was grounded in the ongoing payment dispute between DC&F and Finch.

[23] Senso's claim was proven in its entirety. The same evidence tendered by Senso at trial was available to the parties much earlier in the litigation. Nevertheless, Senso was forced to prove a claim at trial that frankly ought to have been admitted by both defendants well prior to trial. DC&F's pay-when-paid defence and Finch's reduced holdback position were staunchly pursued at trial, but were unmeritorious.

[24] DC&F submits that substantial indemnity costs are meant to sanction egregious, malicious and counter-productive conduct, not hard-fought but misguided litigation: Continental Homes Inc. v. 2646576 Ontario Inc., 2024 ONSC 7301 at para. 12, citing Davies v. Clarington (Municipality), 2009 ONCA 722 at para. 45. Those are indeed my colleague's words and represent a fair and reasonable approach to costs. In my view, though, there is a distinction between misguided litigation and pursuing unmeritorious defences. This case falls in the latter category insofar as Senso's claim is concerned.

[25] Modern costs rules serve three main purposes: (i) to indemnify successful litigants for the costs of litigation, (ii) to encourage settlement, and (iii) to discourage and sanction inappropriate behaviour by litigants: Fong v. Chan, 1999 2052 (ON CA) at para. 22. I agree with Senso that both DC&F and Finch treated Senso as collateral damage in their broader dispute. Given the unmeritorious defences advanced at trial by DC&F and Finch and the correlating heightened costs incurred by Senso, a substantial indemnity award in favour of Senso serves all three purposes and is entirely appropriate in the circumstances of this case.

[26] Senso was forced through years of litigation and was required to participate in a lengthy trial to prove its claim in circumstances where no tenable defences were advanced. In my view, championing unmeritorious defences in summary lien proceedings, and thereby significantly increasing the costs of a lien claimant that is completely successful at trial on all issues, is conduct warranting sanction by the court.

[27] I have jurisdiction and authority under s. 86 of the CLA to award costs exceeding the judgment amount at trial: Benoit Construction Inc. v. Bawa Organization Inc., 2023 ONSC 4239 at para. 32. However, costs must still be proportionate and must reasonably reflect the amount of time and effort "that was warranted by the proceeding": TIF Mechanical Limited v. Ortoli, 2015 ONSC 1476 at para. 14. The threshold of the lesser of 25% of the lien or $50,000 as security for costs when vacating a lien under s. 44(1) of the CLA does not establish any objective measure of what a losing party is reasonably expected to pay in costs: Rocksolid v. Bertolissi, 2014 ONSC 1494 at para. 22.

[28] Having reviewed the bill of costs and considered the submissions of the parties, I find Senso's costs to be reasonable and proportionate. In reaching that that conclusion, I have considered factors such as the number and nature of hearings before me in this reference (including trial), the importance of the issues to Senso, the lead role it took in the reference, and the reasonable expectations of DC&F and Finch given their own bills of costs.

[29] I find no basis to order costs against DC&F and Finch on a several basis. Both opposed Senso's lien and claims throughout the litigation, albeit that DC&F ultimately withdrew those defences before trial. Both maintained untenable defences to liability that were unsuccessful at trial. Senso was forced through the litigation, including trial, because of the positions of both DC&F and Finch. Although trial of Senso's claims may have been shorter had Finch accepted DC&F's withdrawal of its own defences, I do not see it as materially impacting Senso's costs claim, particularly given the agreement of all counsel to have Senso's lawyer assist with technology at trial.

[30] On that point, DC&F and Finch have challenged the costs claim for Senso's counsel appearing throughout trial, even during portions that did not concern Senso. Senso's lawyer was asked by the other lawyers (and perhaps Mr. Martino), or else offered, to assist with running Case Center and displaying documents to witnesses. He kindly did so. Although thanked by the other lawyers and Mr. Martino during trial, his time spent to assist the lawyers and parties is now challenged. I find those challenges to be distasteful. The other lawyers and their clients cannot reasonably have expected Senso's lawyer to remain for portions of the trial that did not concern Senso free of charge, albeit that I give little air to Senso's complaint that its lawyer "has not received any gift baskets from DC&F and Finch for his technological assistance at Trial." I am thereby including the additional costs sought by Senso for its lawyer's extra attendance at trial in my determination on costs.

[31] There is, though, some redundancy in time for trial preparation, at least in my view. I am bound to apply s. 86(2) of the CLA, which provides that where the least expensive course is not taken by a party, the costs allowed to that party are limited to what would have been incurred had the least expensive course been taken. I am also not convinced that $6,000 for trial costs submissions is proportionate or appropriate.

[32] I accordingly fix costs payable to Senso by DC&F and Finch, jointly and severally, in the substantial indemnity amount of $120,000, including HST and disbursements.

iv. TMAP's costs

[33] Unlike Senso, TMAP was only partially successful at trial. TMAP failed to prove its lien, but was successful in proving its contract claim against DC&F. I agree with TMAP that it is entitled to costs against DC&F, but find no basis to award costs against Finch. Finch was completely successful in challenging validity of TMAP's lien and, thereby, avoiding any direct liability to TMAP. While I have discretion to award costs against a successful party in a proper case, I have been directed to no conduct by Finch and no offers to settle that would reasonably or fairly support any adverse costs award against Finch.

[34] TMAP characterizes itself as "the victim of the strict compliance with the date of last supply" arguing that, absent those strict requirements of the CLA, "TMAP would have probably succeeded in its claim." I reject this submission.

[35] TMAP had the evidentiary onus of proving its claims at trial, including demonstrating that it had complied with the requirements for preserving and perfecting its lien in accordance with the requirements of the CLA. TMAP's position is that I should consider that there was no evidence contradicting Yunbo Tang's evidence on last supply. That submission misunderstands TMAP's evidentiary onus.

[36] At trial, a lien claimant is obliged to lead admissible evidence that establishes, on a balance of probabilities, the quantum and timeliness of its lien and, if disputed, the lienability of services and materials supplied. Conversely, a defendant has no obligation to lead any evidence at trial that contradicts the lien claimant's evidence. A defendant may, instead, test the evidence of the lien claimant and argue that it has failed to meet its evidentiary burden. That is what Finch chose to do at trial. I am unclear on what evidence TMAP expected Finch, who had no knowledge of TMAP's work at all, to have tendered at trial to contradict Mr. Tang's testimony.

[37] After considering TMAP's evidence on last supply, I found that Mr. Tang's evidence did not meet the required evidentiary threshold to prove timeliness of the lien. In my reasons, I specifically commented on the lack of evidence from TMAP on what its workers were doing on site on and after September 22, 2021. Having failed to meet its evidentiary onus, I found that timeliness of TMAP's lien was not proven. A declaration of expiry flowed from that finding.

[38] I have already discussed DC&F's withdrawal of all defences at trial to the claims by Senso and TMAP, other than the pay-when-paid defence. As with Senso's claim, DC&F failed in its pay-when-paid defence against TMAP. As with Senso's claim, DC&F opposed TMAP's claim throughout the litigation until before trial. Based on the record before me, DC&F similarly failed to negotiate any terms under which it would support TMAP at trial, including with respect to costs of the action.

[39] I reject DC&F's position that it should be held liable to TMAP for an amount no greater than 20% of DC&F's own partial indemnity costs. TMAP was fully successful against DC&F and unsuccessful against Finch. Although DC&F's pay-when-paid defence was the only defence advanced a trial, other defences were raised and maintained throughout the litigation until trial was looming. I am unclear how DC&F has decided its overall opposition in the entire litigation should be no more than 20% of the total costs incurred by TMAP. As the reference associate judge dealing with the parties at each stage of litigation, I do not agree that is an accurate reflection of its overall contribution to the need for litigation.

[40] I agree with TMAP that its costs are reasonably and proportionate, particularly considering DC&F's own bill of costs. A more detailed bill of costs would have been ideal, with greater breakdown of the various phases of litigation. Nevertheless, having reviewed TMAP's bill of costs, I find the hours claimed to be overall appropriate and the rates claimed to be reasonable. Some time claimed, though, is on the high side considering the quantum in dispute and steps taken in this reference. I accordingly fix TMAP's costs of the action, in the amount of $96,000, including HST and disbursements.

[41] TMAP's bill of costs allocates total costs between DC&F and Finch and appears only to be seeking the allocated portion against each of them. TMAP's calculation of the allocation is somewhat unclear because the aggregate of the pre-tax fees is greater than the total pre-tax fees on the preceding page. The allocation to DC&F is just under 50% of the total costs. Separate written costs submissions were filed for DC&F and Finch. TMAP's position on what costs should be ordered against each of them is not clearly set out in those written submissions, which simply refer to the bill of costs, which allocates costs as I have already noted.

[42] At para. 109 of my reasons for judgment, I directed that any party seeking costs identify the amount and scale of costs claimed and against which parties the costs are sought. Despite that direction, TMAP's written submissions do not assist in understanding the allocation. They also do not assist in clarifying whether TMAP is seeking only the allocated portion against each of DC&F and Finch on a several basis, or something else.

[43] Absent any specific submissions on what amounts are sought against DC&F, including any alternatives, and given the lack of reply to DC&F's responding submissions based on the allocation amount being all that is sought against DC&F, I fix partial indemnity costs against DC&F in line with that allocation in the amount of $47,500, including HST and disbursements.

v. Finch's costs

[44] Finch was completely successful in opposing validity of TMAP's lien, which I have declared expired. I have no hesitation finding that Finch is entitled to costs of TMAP's action as the successful party. I am not convinced, though, that substantial indemnity costs is warranted.

[45] Finch grounds its request for substantial indemnity costs in an argument that TMAP knew, or ought to have known, that its lien had expired. I disagree. TMAP did adduce evidence of ongoing work after September 22, 2021. In his trial affidavit evidence and during cross-examination, Yunbo Tang put forward evidence of such work. That evidence was corroborated by DC&F's witness, Eyad (Tommy) Saleh. Their evidence supported that TMAP was attending site and performing work within the necessary lien period. However, TMAP's claim failed due to lacking particularity on what work was being done. I was not satisfied at trial that TMAP had tendered sufficient evidence on the nature of services and materials allegedly supplied on and after September 22, 2021 to support a finding that new lienable services were continuing.

[46] Finch argues that it is plainly unreasonable for a party to rely on documents that are not reliable. Although I was critical of TMAP's evidence, I did not find that the documents were unreliable. I found that the documents had not been sufficiently explained. They thereby could not corroborate Mr. Tang's statements or support a finding that new contract work had been performed. In my view, it is too great a leap to go from a finding that TMAP led insufficient evidence at trial (and thereby did not meet an evidentiary onus) to a finding that TMAP knew or ought to have known that its lien had expired.

[47] Finch also points to an offer to settle made in November 2022, by which Finch offered to resolve the action on a no-costs basis, with the lien discharged, security in court returned, and the action dismissed. Although not a formal rule 49 offer to settle, I may still consider it. In my view, though, that offer does not assist Finch. It refers to dismissing the action, but does not distinguish the claim against Finch from the claims against DC&F. At trial, TMAP was successful in its contract claim against DC&F. Given that result, accepting an offer to dismiss the entire action, without costs, would not have been a more favourable outcome.

[48] Finch has advanced no other argument supporting substantial indemnity costs. I find that partial indemnity is the correct scale.

[49] Before turning to the merits of Finch's costs claim, I wish to address TMAP's submission that I should consider an alleged incident between Finch's principal, David Martino, and TMAP's principal, Yunbo Tang. Earlier in the litigation, Mr. Martino is alleged to have attended at Mr. Tang's home and verbally harassed and threatened him. I was advised about this incident at one of the hearings for trial directions in the reference, but Finch rightly points out that its lawyers at the time did not concede TMAP's version of the incident. Mr. Tang's telling of the event is disputed by Mr. Martino. I was given no evidence on the incident and made no findings about it. In my view, I cannot fairly consider the incident in deciding costs, although that should not be viewed as condoning the conduct if it did, in fact, occur.

[50] Both TMAP and DC&F oppose costs in favour of Finch on the basis that it was self-represented by its principal, David Martino. They rely on the framework set out by the Court of Appeal in Girao v. Cunningham, 2021 ONCA 18 at para. 9, which requires a self-represented litigant seeking costs to show that they (a) devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation; and (b) as a result, incurred an opportunity cost by foregoing remunerative activity. As set out by the Court of Appeal, "self-represented litigants should not be awarded a fee allowance for time they would ordinarily be attending in court".

[51] With respect to trial itself, I agree with DC&F and TMAP that Finch was self-represented for the purposes of assessing costs. Accordingly, Finch must establish that any time claimed for non-lawyers falls within the two-part framework. However, Finch did have counsel for most of the action. Mr. Martino was granted leave to represent Finch for the purposes of this trial. It follows that costs should be decided in the ordinary course for the period in which Finch was represented by its former lawyers.

[52] Finch has claimed time for three non-lawyers: David Martino (who represented Finch at trial), Chistine Parisi, and Rino Aversa. The time claimed for Chistine Parisi and Rino Aversa relates to preparing affidavits, accounting, and testifying at trial. That is time that any client or witness would have to invest in preparation for trial. It is not recoverable. Mr. Martino's time is claimed for reviewing affidavit evidence, trial preparation, and attending trial. A total of 102 hours is claimed for TMAP's action. There is no evidence on how these hours were tracked, such as docket entries, and the work descriptions are quite generic: 50 hours was spent on "Preparation and review of Affidavits of TMAP and DC&F" and a further 52 hours was spent on "Attendance to Trial – Dave Martino". A rate of $250 per hour has been used. No explanation or argument supporting that rate has been given.

[53] Mr. Martino clearly devoted time and effort to do work ordinarily done by a lawyer to prepare for and conduct the trial before me. However, that is only one-half of the requirement. There must also be an opportunity cost by foregoing remunerative activity. DC&F correctly points out that there is no evidence of any lost opportunity cost to Finch from Mr. Martino performing the work. In addition, Finch did not address incurring an opportunity cost or loss of remunerative activity in its written costs submissions, which post-date both the submissions by TMAP and DC&F. I accordingly award no costs to Finch for Mr. Martino's trial time.

[54] Having reviewed Finch's time claimed in TMAP's action, time has been claimed that does not appear to be in respect of TMAP's lien or lien action, including time spent by Finch's lawyers on substantial completion of the project, dealing with Tarion, and preparing a notice of default, all of which appear to pre-date TMAP's lien. Much of the claimed time does relate to TMAP's lien, but there are some entries that do not appear to be and have not been explained, including working on condominium registration and liens, a response from DC&F to holdback reduction (which seems to be beyond merely TMAP), reviewing Tarion letters, an internal meeting about holdbacks (which also seems to extend beyond merely TMAP), conducting HST and corporate profile reports (the need for which has not been explained), and calls about dealing with Romspen Investment Corporation (a mortgagee). There are other entries that have seemingly disproportionate time recorded for the description provided.

[55] There are also two flat fees claimed for bonding ($1,500) and condo registration ($2,500). No particulars are provided for these entries and no explanation given for how they are connected to TMAP. For example, it is unclear if the "Legal for Bonding – Westmount" entry is limited to TMAP's lien or includes other bonds arranged for other liens. The bonds were also secured by Kaleido and no argument has been made for why those costs are recoverable by Finch. Did Finch arrange the bonding at its expense in Kaleido's name? Did it indemnify Kaleido for its costs?

[56] I also have a concern with the final block entry for legal consulting on preparation for trial with Rousseau Mazzuca LLP. No breakdown is provided and no legal account or dockets are appended. It is difficult to assess whether the amount claimed is solely for trial of TMAP's action or for both trials. Precisely the same amount is claimed in Finch's bill of costs in Senso's action. No explanation has been given for how time and expenses have bee allocated between the two actions, which should have been done.

[57] Claimed disbursements are generally reasonable. There are three unclear items: "Issue notice of action" for $229, "Enter/issue order" for $785, and "Appearance fee" of $300. No notice of action was issued by Finch in this action. There is no cost to motions in actions under the CLA, so the disbursement cost associated with issuing and entering an order is unclear. It is also unclear what order is being referenced. The appearance fee is unexplained. I am not allowing these disbursements.

[58] Fixing costs is not a mathematical exercise or science. It is about fixing what is fair and reasonable in the circumstances of this case. In my view, considering the concerns outlined above, the fair and reasonable amount of costs payable by TMAP to Finch on a partial indemnity basis is $43,750, including HST and disbursements.

[59] Finch seeks an order that DC&F also be held jointly and severally liable for Finch's costs of TMAP's action. It argues that Finch was only drawn into TMAP's lien action because of DC&F's failure to pay TMAP. I have indeed found that DC&F did breach its subcontract with TMAP by failing to make payment. Finch also correctly points out that DC&F initially disputed the validity and timeliness of TMAP's lien, but abandoned those defences shortly before trial. I do not fault Finch for supporting DC&F throughout the litigation in challenging TMAP's lien. DC&F was in a better position to know what work was performed by TMAP and the timing of that work. Given the late change in DC&F's position, I agree that Finch was left to litigate the expired lien on its own. It was successful in doing so.

[60] I have found that DC&F ought to have paid TMAP, but failed to do so, and that TMAP's lien had expired. TMAP's only claim against Finch was for statutory holdback liability, which relied on proving its lien. Given the result, I tend to agree with Finch that it was only named in TMAP's action because DC&F failed to pay its own subcontractor. That failure to resolve its subcontractor dispute with TMAP, for which DC&F has now been held liable, and its late-changing litigation position caused Finch to incur costs of litigating the expired lien. Those costs would have been avoided had DC&F complied with its contractual obligation to pay TMAP, as I have found it was required to do, or assumed responsibility for vacating TMAP's lien, which would have made Finch an unnecessary party.

[61] DC&F argues that Finch should be liable to DC&F for its costs of TMAP's action. At para. 93 of my reasons for judgment, I did observe that Finch spent a great deal of time challenging DC&F's billing practices and performance on the job, which were not issues at this trial. I agree with DC&F that it incurred costs addressing that issue, except to the limited extent that those positions impacted holdback. However, those costs are not solely attributable to TMAP's lien action, but rather were allegations addressed in both actions. DC&F's billing practices and performance are still an open issue to be decided in the prime contract dispute between DC&F and Finch. Since crossclaim issues have been deferred to trial of that action, costs associated with those allegations are, in my view, properly deferred to that trial.

[62] In these circumstances, I agree with Finch that DC&F should be jointly and severally liable with TMAP for Finch's costs of TMAP's action. Finch only became a necessary party in the litigation and trial because of DC&F's failure to address TMAP's claim, which was fully proven against TMAP at trial. However, for reasons discussed below, I would stay enforcement of the costs award against DC&F pending a decision on DC&F's crossclaim against Finch in TMAP's action, which will occur at the trial of DC&F's lien action.

vi. DC&F's costs

[63] DC&F seeks its costs of Senso's action and TMAP's action from Finch on a partial indemnity basis. In my view, any costs award in favour of DC&F cannot be decided until trial of its prime contract dispute with Finch.

[64] DC&F and Finch agreed to defer their respective crossclaims in these lien actions to be decided at the trial of DC&F's lien action. Given the trial result here, the only remaining crossclaims to be tried are DC&F's crossclaims against Finch in both actions and Finch's crossclaim against DC&F in Senso's action. Finch's crossclaim against DC&F in TMAP's lien action has been rendered legally moot, since I have found that TMAP's lien should be discharged and the action against Finch should be dismissed.

[65] It is not possible to fairly decide DC&F's costs claim until the remaining crossclaims have been determined. Each of DC&F and Finch advanced defences on their own. DC&F challenged validity of the claims of both Senso and TMAP, albeit ultimately withdrawing those defences. Finch maintained its unsuccessful position on holdback, but also maintained a parallel position to that of DC&F in the litigation on invalidity of Senso's lien. Although TMAP's lien was discharged, it remains an open issue if DC&F's breach of contract was caused or contributed to by Finch's non-payment. I am therefore unable to say that one of DC&F or Finch caused or contributed to the costs of the other by their positions. That decision must await findings on the crossclaims.

[66] I am accordingly deferring DC&F's costs claims against Finch, deferring Finch's costs claim against DC&F for Senso's action, and staying enforcement of the costs award in favour of Finch against DC&F for TMAP's action pending trial of DC&F's lien action.

b. Analysis of interest claims

[67] Both Senso and TMAP calculate interest on the judgment amounts awarded to them pursuant to the rates prescribed under the Courts of Justice Act. Both have adjusted the interest calculation to account for each quarterly adjustment in the pre-judgment interest rate while the litigation has remained ongoing. That rate has increased from 0.5% per annum in 2021, when both actions were commenced, to a height of 5.3% per annum in late 2023 through 2024, and sliding down to 3.3% per annum in 2025 when my decision was rendered.

[68] The method used is not typically how pre-judgment interest under the Courts of Justice Act is calculated. However, I agree that I have broad discretion with respect to calculation of interest and the rates used. Notably, Senso points to s. 130(2) of the Courts of Justice Act, which provides that the court shall take into account factors such as changes in market interest rates and any other relevant consideration, which Senso submits should include the fluctuating interest rate under the Courts of Justice Act benchmark rates. That position is unchallenged by DC&F and Finch.

[69] Ultimately, the method of calculating pre-judgment interest and the quantum of interest calculated by each of Senso and TMAP has not been questioned by either DC&F or Finch. That includes Senso's argument for why its calculation based on fluctuating interest rates should be accepted and applied. Since it is uncontested, I am awarding interest as calculated by each of Senso and TMAP.

[70] I directed that per diem interest rates be provided. Senso provided one. TMAP did not. Accordingly, I have had to calculate a per diem rate for TMAP, which I have done based on the uncontested calculation method and rates provided.

[71] I accordingly fix interest on the judgments that I have directed as follows:

(a) For Senso's lien judgment, $19,395.93 to the date of my reasons, with interest thereafter accruing at 5.0% per annum at a per diem interest rate of $20.42.

(b) For Senso's contract judgment, $19,793.82 to the date of my reasons, with interest thereafter accruing at 5.0% per annum at a per diem interest rate of $20.84.

(c) For TMAP's' contract judgment, $26,304.03 to the date of my reasons, with interest thereafter accruing at 5.0% per annum at a per diem interest rate of $29.01.

c. Interim report

[72] The parties could not agree on a form of interim report (or reports) in this reference. Competing versions of interim reports have been submitted by the parties. I am not satisfied with any of them. I anticipate revising and signing a final version of the report in the next several days If I feel that I am unable to fairly settle the form of report myself, then I will direct a hearing for submissions on settling any issues of concern.

ASSOCIATE JUSTICE TODD ROBINSON

DATE: April 15, 2026