Todd Robinson

This costs endorsement follows the dismissal of two construction lien actions brought by JCL Concrete Pumping Limited and Ontario Trucking and Disposal Ltd. against SEMA Railway Structures Inc. and Metrolinx.

The court addresses the parties’ submissions on costs, ultimately awarding substantial indemnity costs to SEMA, the successful party, and rejecting the plaintiffs’ arguments for limiting or reducing costs.

The decision reviews the applicable statutory framework, the conduct of the parties, and the offers to settle, and finds that SEMA’s costs were reasonable and proportionate in the circumstances.

Starbank Developments 285 Corp. brought an ex parte motion to declare the plaintiff’s construction lien expired and to vacate the certificate of action from title.

The court found that Starbank had not met the high evidentiary onus required for such a motion, citing insufficient and improper evidence, and concerns about the unilateral deletion of the lien from title without notice to the lien claimant.

The motion was dismissed without prejudice, with directions that any further motion must be brought on notice to the plaintiff and in Brampton, except for a vacating motion under s. 44(1) of the Construction Act.

The court dismissed the defendants’ motion for security for costs against Icon Wheelchairs Canada, finding that the delay in bringing the motion and the arguable merits of the plaintiff’s claims made such an order unjust.

The court also fixed costs for the discontinued action by Icon Wheelchairs Inc., but stayed payment pending the outcome of the defendants’ counterclaim.

The decision provides a detailed analysis of the legal framework for security for costs, the impact of delay, and the assessment of the merits of the underlying claims.

The court considered a motion by Joanne Fox to permit her spouse, Evan Kirsh, to attend continued examinations for discovery in a Construction Act action, for the purpose of assisting her counsel.

The plaintiff, Irwin Allen Design Build Inc. (IADB), opposed further attendance by Mr. Kirsh, citing alleged disruptive behaviour and negative impacts on its deponent.

The court exercised its discretion to allow Mr. Kirsh’s attendance, subject to conditions: he may attend the examination of Mr. Allen only by videoconference and may attend Ms. Fox’s examination in person or by videoconference, but must not interfere or act as a witness.

The decision balances fairness to both parties, considering Mr. Kirsh’s prior attendance, his role as a material witness, and the need to avoid disruption.

This decision concerns the interim distribution of the admitted basic holdback under the Construction Act in a complex construction lien reference.

The court fixes the minimum basic holdback obligation of 35 Mercer Limited and orders pro rata payment to certain validated lien claimants, while holding the balance pending further determination of disputed liens, particularly that of 1086289 Ontario Inc. o/a Urban Electrical Contractors.

The ruling addresses the allocation of holdback among multiple classes of lien claimants and the treatment of disputed and unproven liens.

This decision concerns a mid-trial motion in a construction lien action.

The plaintiff, Village Homes Inc., sought to strike portions of the affidavit and report of the defendant’s witness, Yu Ching Lai, regarding the presence of rebar and concrete in a disputed wall and observations of wall cracking.

The court found that Mr. Lai lacked personal knowledge regarding the rebar and concrete, as his evidence was based on hearsay from a video, and struck those portions.

However, the court allowed Mr. Lai to testify about his personal observations of wall cracking.

The ruling also addresses the parties’ discovery and production obligations, the scope of undertakings, and the admissibility of participant expert evidence.

This decision concerns a construction lien action arising from a condominium project at 200 Woodbine Avenue, Toronto.

Elembe (LMB) Mechanical Ltd. claimed for unpaid contract work and extras, while Two Hundred Inc. counterclaimed for overpayment and deficiencies.

The court found that LMB had partially proved its claim for extras and was entitled to an earned and unpaid contract balance, but failed to prove that any amounts were due and payable as of the date it suspended work.

The court also found that LMB breached the contract by suspending and abandoning work, resulting in the expiry of its lien rights.

Two Hundred Inc. failed to prove its counterclaim for deficiencies.

Judgment was granted to LMB for the unpaid contract balance, but its lien was declared expired.

The court ruled on the admissibility of expert evidence in a construction lien action.

The defendant sought to call Michael Colalillo, a structural engineer, as an expert under rule 53.03 of the Rules of Civil Procedure.

The court found that Mr. Colalillo did not meet the requirements to testify as a rule 53.03 expert due to non-compliance with the rule’s requirements for expert reports.

However, the court permitted Mr. Colalillo to testify as a participant expert, subject to a qualification voir dire, as his opinions were based on his personal observations and participation in the project.

The court struck his litigation reports and affidavit sworn February 11, 2025, but allowed his earlier affidavit and appended reports from 2022 to be admitted.

The court denied the defendant’s motion to adjourn a peremptory trial week in a Construction Act lien action, finding insufficient medical evidence to support the principal’s inability to participate.

The decision reviews the discretionary nature of adjournment requests, the need for transparency and timely disclosure, and the importance of summary proceedings in lien actions.

The court found no compelling grounds for adjournment and highlighted the risk of prejudice and delay to the plaintiff and the administration of justice.

The court considered a motion by the defendants to discharge the plaintiff’s construction lien and dismiss the action as frivolous, vexatious, or an abuse of process, or for delay.

The dispute centered on whether the plaintiff was a proper lien claimant, the nature of his relationship with the defendants (partnership or subcontractor), and whether the lien was properly quantified.

The court found triable issues on the relationship and quantification, dismissed the motion to discharge the lien, and imposed a timetable for the next steps in the litigation.

The decision addresses whether the defendant, Valerie Connelly, should be granted leave to call five disputed witnesses at trial in a construction lien action, despite failing to comply with a court-ordered deadline for serving trial evidence.

The court finds that while Ms. Connelly failed to adequately explain her breach, the interests of justice favour allowing her to call four of the five witnesses, with the breach compensable in costs.

The court also sets a revised timetable for trial steps, addresses costs thrown away, and fixes costs of the hearing, emphasizing the importance of compliance with court orders and balancing procedural fairness.

This motion concerned an application by Capo Sgro LLP, former lawyers for the plaintiff Haven Property Services Corp., for a charging order over settlement proceeds to secure unpaid legal fees and disbursements.

Haven opposed the motion, arguing that Capo Sgro LLP was not instrumental in achieving the settlement and that Haven was able and willing to pay its fees, subject to a pending assessment under the Solicitors Act.

The court found that while Capo Sgro LLP's efforts were instrumental in the settlement, there was insufficient evidence to demonstrate that Haven was unable or unwilling to pay its outstanding legal fees.

The court emphasized that non-payment alone or commencing a fee assessment does not constitute unwillingness to pay.

The motion for a charging order was dismissed, and Haven was awarded costs.

This lien action concerned a substantial home renovation project.

The plaintiff, Hannan Custom Building Ltd., claimed for unpaid services and materials.

The defendants, the Owners, denied a direct contract with the plaintiff, asserting their contract was with DC Builders Ltd., and that Hannan Building was a subcontractor.

The court found no direct contract between the plaintiff and the Owners, but rather a contract between the Owners and DC Builders, making the plaintiff a subcontractor.

The plaintiff's claim against the Owners was thus limited to the basic holdback amount under the Construction Act, subject to proven set-offs for deficiencies.

The court granted judgment to the plaintiff for the basic holdback amount.

The plaintiffs brought a motion seeking to strike the statement of defence or compel a further and better affidavit of documents from the defendant, the Town of Oakville, in a construction dispute.

The motion to strike was not pursued.

The court granted the motion for a further affidavit of documents in part, finding the Town's initial affidavit deficient and ordering a supplementary affidavit with specific relevant documents, including those related to privilege claims.

However, many of the plaintiffs' broad production requests were dismissed due to insufficient evidence of relevance or existence, with the court emphasizing that such inquiries are better suited for examination for discovery.

The court also rejected the Town's threshold objections regarding unpaid costs and failure to agree on a discovery plan, noting that the latter default was shared by both parties.

The plaintiff, executor of John Stewart's estate, moved for production of bank records from Toronto-Dominion Bank (TD) and the defendants.

The motion sought records of funds deposited by Stewart into a defendant's account, changes in signing authority, and subsequent transfers.

The defendants opposed, citing privacy.

The court granted the motion in part, ordering TD to produce records related to the initial deposit and signing authority changes, but denied the request for broader tracing records from the defendants, finding their relevance tenuous at this stage.

Costs were awarded to the plaintiff due to the defendants' non-compliance with prior orders.

This motion, part of a larger reference concerning the Nobu Residences condominium complex, addressed the application of the transition provisions in section 87.3 of the Construction Act.

The core issue was whether the former Construction Lien Act (CLA) or the current Construction Act applied to the improvement and associated liens, which directly impacted lien timeliness.

The owner, 35 Mercer Limited, the contractor, Urban Integrated Group Inc., and a lien claimant, Brunco Insulation Ltd., argued for the application of the CLA, while Desco Plumbing and Heating Supply Inc. contended the current Construction Act should apply.

The court found that the CLA continues to apply to the improvement and all liens arising from it, based on evidence that a procurement process for the improvement commenced before July 1, 2018.

The court rejected arguments that the owner's affidavit was deficient, that ex parte vacating orders were binding, that the onus to provide transition dates was "murky," or that project delays like the COVID-19 pandemic should influence the application of section 87.3.

This judgment addresses two lien actions arising from bridge rehabilitation work.

The plaintiffs, JCL Concrete Pumping Limited and Ontario Trucking and Disposal Ltd., claimed breach of contract or, alternatively, quantum meruit and unjust enrichment against SEMA Railway Structures Inc. for materials and equipment supplied.

The central issue was whether a contract was formed between SEMA and the plaintiffs, or with "JCL Group Inc." The court found no contract between SEMA and the plaintiffs, concluding that SEMA reasonably believed it was contracting with JCL Group Inc. As the plaintiffs had unequivocally withdrawn their alternative claims in quantum meruit and unjust enrichment prior to trial, the court dismissed their actions and discharged their liens.

SEMA's set-off claim was also dismissed as it was contingent on a contract being found.

The defendants moved to dismiss the action for delay and discharge certificates of pending litigation.

The action, commenced in 2014, arose from an alleged oral trust agreement and wrongful eviction.

The original plaintiff lost capacity and passed away during a lengthy period of inactivity, and her evidence was never preserved.

The court found the delay to be inordinate, inexcusable, and highly prejudicial, as a fair trial was no longer possible without the deceased plaintiff's direct evidence.

The motion was granted, the action was dismissed, and the certificates of pending litigation were discharged.

The defendants, Kyrollos Maseh and Marina Tanious, brought a motion seeking to discharge the plaintiff's lien and dismiss the action due to the plaintiff's non-compliance with a prior order regarding undertakings and costs.

Prior to the hearing, the plaintiff complied with some aspects, and the parties resolved the substantive motion, leaving only costs to be determined.

The court, applying principles from Muskala v. Sitarski, declined to award the moving defendants their claimed costs of the motion, finding them excessive and largely attributable to costs of the action rather than the motion itself.

The court noted the plaintiff's breach necessitated the motion but also found the defendants' approach to reviewing disorganized answers contributed to their claimed costs.

The final order was no costs for the motion, without prejudice to the defendants claiming those costs as costs of the action.

The plaintiffs moved to amend their statement of claim to add a $50,000 claim for aggravated and punitive damages, alleging the defendants breached an oral agreement by commencing eviction applications at the Landlord and Tenant Board.

The defendants opposed the motion, arguing delay, limitation periods, lack of an independent actionable wrong, and that the matter fell within the exclusive jurisdiction of the LTB.

The court granted the motion, finding that the delay could be compensated by costs and a tight discovery timetable, and that the underlying factual determinations regarding the alleged oral agreement were within the Superior Court's jurisdiction.