Executive Summary: Key Legal and Evidentiary Issues

• Interpretation of “home buyer” under section 1(1) of the Construction Act.

• Appropriateness of awarding substantial indemnity costs for motions that delay proceedings.

• Assessment of whether a motion was justified based on the merits of the core legal issue.

• Consideration of the proportionality and reasonableness of costs claimed by the successful party.

• Evaluation of the use of hearsay evidence and failure to cross-examine on affidavits.

• Determination of a fair quantum for costs awarded in the context of the motion.

Facts of the case

E-Tech Electrical Services Inc. brought an action involving Churchill Three LP, Churchill Three Develco Inc., Diamante Development Corporation, and Toronto Standard Condominium Corporation No. 2890 (TSCC 2890). TSCC 2890 brought a motion for summary judgment seeking to end its involvement in the action, specifically arguing that it was not a “home buyer” under section 1(1) of the Construction Act. The motion was argued on August 7, 2025, and the decision was rendered on August 11, 2025, dismissing TSCC 2890’s motion in its entirety.

Discussion of policy terms and legal framework

The core issue in the motion was whether TSCC 2890 qualified as a “home buyer” under the Construction Act. TSCC 2890 argued that this was a novel legal point, suggesting that the costs award should be reduced due to the underdeveloped nature of the law in this area. However, the court found that the issue turned on a straightforward interpretation of the statutory definition, noting that the definition of “home” in relation to a condominium unit clearly included the common elements appurtenant to the unit, and the occupancy permit in question excluded those elements. The court also referenced section 86(1) of the Construction Act, which authorizes the court to award substantial indemnity costs against a party that delays the conduct of the action.

Analysis and reasoning

The court found that TSCC 2890’s motion lacked merit and that its pursuit of the motion unreasonably delayed the action, justifying an award of substantial indemnity costs. The court noted that the affidavits submitted by TSCC 2890 were full of hearsay and that TSCC 2890 failed to cross-examine on E-Tech’s affidavits, which undermined TSCC 2890’s position. The court also considered the proportionality and reasonableness of the costs claimed by E-Tech, ultimately finding that the amount claimed for the preparation of the costs submissions was somewhat excessive but that a fair and reasonable award was warranted.

Ruling and outcome

The court ordered TSCC 2890 to pay substantial indemnity costs to E-Tech Electrical Services Inc. in the amount of $9,000, to be paid within thirty days of the decision. E-Tech Electrical Services Inc. was the successful party on the motion, and the total monetary award ordered in its favor was $9,000.