Stephane P. Bond

The defendants, JP Gravel Construction Inc. and Jean-Pierre Gravel, brought a motion seeking leave to discharge a construction lien registered by the plaintiff, 9585800 Canada Inc. o/a Earth Movers, and to dismiss the lien action.

The plaintiff had initially registered a "First Lien" with a typographical error in the timeframe of services, discharged it, and immediately registered a "Second Lien" with the corrected timeframe.

The defendants argued the second lien was invalid under s. 48 of the Construction Lien Act due to the discharge of the first, and was exaggerated.

The court granted leave for the motion but dismissed the defendants' request to discharge the second lien, finding the first lien to be a nullity due to the incorrect timeframe, thus making s. 48 inapplicable to the valid second lien.

Costs were awarded to the plaintiff.

This endorsement addresses the costs arising from the dismissal of the Plaintiff's motion for summary judgment.

The Defendants, as the successful parties on the summary judgment motion, sought costs in the range of $17,000-$19,000.

The Plaintiff argued for deferral of costs to the trial judge or a significantly lower award, citing that some defence materials would be used at trial and the limited value/complexity of the motion.

The court found the Defendants' costs claim reasonable, noting the Plaintiff's own higher costs outline for the original motion and the "pay-as-you-go" principle for interlocutory motions.

The court awarded the Defendants $12,000 in all-inclusive costs, plus an additional $500 for preparing the costs submissions.

The plaintiff, G.M. French Construction Co., sought leave to bring a summary judgment motion and summary judgment for unpaid invoices totaling $74,454.79, less a Tarion defect amount, arising from a cost-plus contract to build a new home.

The plaintiff also sought to dismiss or stay the defendants' counterclaim.

The court, applying the test from Hryniak v. Mauldin and s. 67 of the Construction Lien Act, found that there were genuine issues requiring a trial, including disputes over change orders, the value of unapproved changes, work performance, project delays, and the consultant's payment approvals.

Consequently, leave for the summary judgment motion and the motion for summary judgment were denied.