Todd Robinson

Following a successful motion by the plaintiff for a status hearing to prevent the action from being dismissed for delay, the plaintiff sought partial indemnity costs against the only opposing defendant.

The court found that while the defendant's opposition was not unreasonable, he was not insulated from costs.

The court awarded the plaintiff $6,000 in costs, payable in the cause, reflecting the additional expense incurred due to the defendant's opposition.

Following a successful motion by the plaintiff to extend the time for service of its statements of claim in two lien actions, the plaintiff sought partial indemnity costs.

The defendant argued that costs are not typically awarded to a party seeking an indulgence.

The court held that there is no general rule disentitling a party seeking an indulgence from recovering costs, especially where the opposing party's conduct unnecessarily increased costs.

The court awarded the plaintiff $11,000 in partial indemnity costs.

The plaintiffs obtained a Mareva injunction against the defendant, Dr. Al Jabri, requiring him to disclose his worldwide assets and submit to cross-examination.

During the cross-examination, disputes arose regarding the scope of permissible questions, particularly concerning assets held prior to the Mareva order, assets gifted to his son, and assets transferred to others.

The plaintiffs brought a motion for directions.

The court held that the plaintiffs are entitled to examine the defendant on former assets, gifted assets, and transferred assets to test whether he retains any continuing interest in or control over them, as such assets would be captured by the Mareva order.

The court provided a framework for the permissible scope of cross-examination and ordered the defendant to re-attend.

The moving party contractor sought to declare two construction liens preserved by the responding party sub-subcontractor as expired.

The central issue was the interpretation of the transition provisions in s. 87.3 of the Construction Act, specifically whether the former 45-day or current 60-day lien preservation period applied when the prime contract was entered into before July 1, 2018, but the subcontracts were entered into after.

The court held that the legislative scheme applies consistently to all persons involved in the same improvement based on the date of the prime contract.

Consequently, the former 45-day period applied, the liens were declared expired, and the posted security was ordered returned.

The plaintiff moved for a status hearing under Rule 48.14(5) to extend the set down deadline in an action regarding alleged construction defects in a custom home.

Only one defendant opposed the motion.

The Master found that the plaintiff provided an acceptable explanation for the litigation delay, noting that much of it was due to accommodating the defendants' requests.

The Master also found no evidence of non-compensable prejudice to the defendants.

The motion was granted, and a timetable was set for the remaining interlocutory steps.

The plaintiff brought motions to extend the time for service of its statements of claim in two construction lien actions, and to validate service or permit substituted service.

The plaintiff had consciously decided not to serve the claims within the 90-day statutory period, ostensibly for financial reasons, and later attempted service by emailing the defendant's lawyer.

The court found the plaintiff's explanation for the delay inadequate and the email service invalid.

However, considering the lack of demonstrable prejudice to the defendant and the defendant's own complacency after becoming aware of the liens, the court granted the extensions and dispensed with the requirement for further service.

The plaintiff subcontractor brought a motion for summary judgment for interest and costs on its construction lien claim against the defendant contractor.

The principal amount of the lien was agreed upon and paid from security in court.

The defendant argued it was not liable for interest or costs due to an oral 'pay when paid' agreement, as it had not been fully paid by the third-party general contractor.

The court found no evidence of a 'pay when paid' agreement and held the defendant breached the subcontract by failing to pay the plaintiff.

The court awarded the plaintiff pre-judgment interest and costs, and granted the defendant contribution and indemnity for those costs against the third party.

The defendant moved to stay the plaintiff's construction lien actions and discharge the liens, arguing that the plaintiff corporation lacked a controlling mind after its sole director became bankrupt.

The court found that neither the bankrupt director nor a secured creditor holding a share pledge agreement had the legal authority under the Business Corporations Act to direct the litigation.

The court stayed the actions but granted a 30-day cure period for the plaintiff to rectify the corporate governance issue, and ordered the plaintiff to post $150,000 in security for costs as a precondition to lifting the stay.

The defendant brought a motion seeking to discharge the plaintiff's construction lien, dismiss the action, return security, compel answers to undertakings, and for security for costs.

The plaintiff opposed the motion.

The court dismissed the defendant's requests for lien discharge, action dismissal, and security for costs, finding triable issues regarding lien timeliness and insufficient evidence for frivolous/vexatious claims or lack of assets.

However, the court granted the order compelling the plaintiff to answer outstanding undertakings.

The Owners (Jeffrey and Rachel Nagashima) brought a motion under s. 44(2) of the Construction Act to vacate Cancore Production Ltd.'s construction lien against their property by posting reduced security, specifically the basic statutory holdback of $38,000.

Cancore opposed any reduction.

The court dismissed the Owners' motion, finding they failed to convincingly demonstrate that their maximum liability to Cancore would be less than the full lien amount.

The Master found triable issues regarding the prime contract price, the extent of agreed extras, and the validity of claimed set-offs for incomplete and deficient work, concluding that the Owners had not met their evidentiary onus to justify a reduction in security.

Schindler Elevator Corporation brought an action to perfect a construction lien for unpaid services and materials supplied for the installation of elevators at the Women's College Hospital redevelopment project.

The general contractor, Walsh Construction/Bondfield Partnership (WBP), counterclaimed for delay impact losses, liquidated damages, and indemnification for penalties, alleging Schindler's delayed performance critically impacted the project schedule.

The court found that while Schindler breached the subcontract by delayed performance, WBP failed to prove that Schindler's delays impacted the critical path of the project or caused the majority of the claimed damages.

Schindler was awarded judgment for the unpaid subcontract balance, less minor set-offs for direct impacts, and WBP's claims against Schindler and its surety, Zurich, were dismissed.

The defendant brought an ex parte motion to vacate a construction lien registered by the plaintiff.

The court declined to grant the motion because the defendant failed to submit a copy of the registered claim for lien and the proposed letter of credit contained unacceptable conditions referencing the Uniform Customs and Practice for Documentary Credits.

The motion was deemed dismissed without prejudice to being brought again with a complete record and appropriate security.

The plaintiff moved for an order extending the time to serve a statement of claim in a construction lien action.

The claim was not served within the 90-day period prescribed by the Construction Act due to inadvertence.

The court granted the extension, finding the six-week delay was not inordinate and caused no prejudice to the defendants.

However, as the motion was an indulgence necessitated by the plaintiff's inadvertence, the court awarded costs to the responding defendant.

The plaintiff subcontractor brought a motion without notice to note the defendants in default and for default judgment in a construction lien action.

The court found that the defendants failed to file statements of defence within the required 20-day period under the Construction Act and ordered them noted in default.

However, the court dismissed the motion for default judgment against the owner, finding no valid claim for unjust enrichment against an owner and that holdback liability requires a prior declaration of a valid lien.

The motion for default judgment against the contractor defendants was adjourned to an oral hearing to ensure proper notice.

The plaintiff in a construction lien action sought leave under s. 67(2) of the Construction Lien Act to bring an interlocutory motion to compel answers to refusals from a cross-examination.

The cross-examination was on an affidavit sworn in support of the defendant's pending motion for security for costs.

The Master denied leave, finding that the proposed refusals motion would not expedite the resolution of the issues and was not necessary for the fair disposition of the pending security for costs motion.

The defendant successfully moved to reduce the plaintiff's construction lien on the basis that it was wilfully exaggerated.

The parties could not agree on costs for the motion.

The court awarded the defendant costs on a substantial indemnity basis, finding that the plaintiff's conduct in wilfully exaggerating the lien warranted a higher scale of costs to deter such practices in the construction community.

Costs were fixed at $34,500.

This was a standalone costs endorsement following a motion to impose a discovery plan and resolve disputes over relevance and proportionality of document production categories.

The moving party obtained the principal relief on the underlying motion and sought partial indemnity costs, while the responding party argued for no costs or a substantially reduced amount and also sought costs of an adjournment.

Applying the court's broad discretion under s. 131 of the Courts of Justice Act and Rules 57.01, 1.04(1.1), and 39.02(4)(b), the court found the moving party was substantially more successful but reduced its claim for divided success, unreasonable expense, and unnecessary travel-related cross-examination costs.

Costs were fixed at $30,500 inclusive of HST and disbursements, payable within 30 days.

The defendant property owner moved under Rule 45.02 for an order requiring her co-defendant, a second mortgagee who sold the property under a power of sale, to pay a portion of the sale proceeds into court.

The moving party alleged the mortgagee breached its duties by selling the property at an improvident price.

The court dismissed the motion, finding that while the moving party claimed a right to a specific fund, she failed to establish a serious issue to be tried regarding the mortgagee's conduct, and the balance of convenience favoured the mortgagee given the undisputed mortgage debt.

Following a trial where the plaintiff was awarded judgment for $86,244.38 on a construction lien claim, the court determined the issue of costs.

The plaintiff sought partial indemnity costs of $69,701.77, while the defendant, despite being unsuccessful, sought substantial indemnity costs arguing he was the more successful party on the major trial issues.

The court rejected the defendant's argument, finding no basis to award costs to an unsuccessful defendant.

Applying the factors under section 86 of the Construction Lien Act and Rule 57.01, the court awarded the plaintiff $38,000 in costs, less a $3,000 set-off for a prior motion, resulting in a net costs award of $35,000 to the plaintiff.

The defendant moved to discharge the plaintiff's construction lien under section 47 of the Construction Act, arguing it was wilfully exaggerated and an abuse of process.

The lien related to biohazard remediation services following a death at the property.

The court found insufficient evidence to summarily discharge the lien as an abuse of process, noting triable issues regarding the agreed scope of work.

However, the court found that portions of the lien were wilfully exaggerated, including unsubstantiated labour hours and opportunistic billing increases.

The court reduced the lien amount by $48,041.80 pursuant to section 35 of the Construction Act.