Sheri-Lynn Medaglia

The court awarded substantial indemnity costs to the successful defendant, Performance Painting & Floor Coating Ltd., following a construction lien trial where the plaintiff's claim was dismissed.

The court found the plaintiff's action, particularly its use of the construction lien process, was for tactical advantage and lacked factual basis, justifying substantial indemnity costs under both the Construction Lien Act and Rule 49, despite the plaintiff's arguments regarding proportionality and the validity of the defendant's settlement offer.

The plaintiffs moved for an order to transfer a Small Claims Court action to the Superior Court and to consolidate or try together four related actions.

By consent, the Small Claims Court action and a line of credit action were ordered to be tried together with the main action.

The contested part of the motion concerned the consolidation of the "Envirotech action" with the other three.

The court dismissed the motion to consolidate the Envirotech action, finding that it did not meet the "gateway" criteria under Rule 6.01(1) of the Rules of Civil Procedure, as there were no common questions of law or fact, the relief did not arise from the same transactions, and no other compelling reason for consolidation was presented.

The court noted that the Envirotech action was a straightforward claim for services rendered, distinct from the complex main action.

The defendant moved for security for costs under Rule 56.01(1)(a) and (d) of the Rules of Civil Procedure on the basis that the plaintiff corporation was resident outside Ontario and lacked assets within the jurisdiction.

The plaintiff argued that it possessed sufficient assets in Michigan and that reciprocal enforcement legislation would permit enforcement of any costs award there, and also relied on the defendant’s delay in bringing the motion.

The court held that the defendant met the threshold for ordering security because the plaintiff was a non-resident corporation with insufficient Ontario assets and had failed to provide convincing evidence of sufficient exigible assets in Michigan.

While the defendant had delayed bringing the motion for several years, the circumstances justified ordering security only for costs incurred after the motion rather than the full estimated costs of the action.

The plaintiff was ordered to post staged security totalling $35,000.