Executive Summary: Key Legal and Evidentiary Issues

• Wall Savers Ltd. (WSL) claimed breach of contract damages and a construction lien totalling $253,615.37 (HST incl.), but was awarded a net amount of $44,999.19 (HST incl.).
• Quovadis Apartments Inc. asserted a set-off and counterclaim of $188,992.68, of which only $24,084.80 (HST incl.) was allowed by the court.
• Divided success on multiple issues — particularly delay-related claims on which neither party prevailed — was central to the court's costs analysis.
• Misconduct by WSL's principal, Mr. Mackowiak, in wilfully exaggerating a lien claim for BBL inspection costs as a "quid pro quo," directly reduced WSL's costs entitlement.
• Quovadis' own conduct, including delayed holdback payments, non-payment of invoice #2112, and asserting back-charges without prior notice, was also criticised by the court.
• Prejudgment interest was awarded at 3% per annum on the judgment amount of $44,999.19, running from June 20, 2021, under the court's discretion pursuant to the Courts of Justice Act, s. 130.

Facts of the case

Wall Savers Ltd. (WSL) commenced an action against Quovadis Apartments Inc. (Quovadis) under the Construction Act, R.S.O. 1990, c. C.30, claiming a construction lien and breach of contract damages in the amount of $253,615.37 (HST incl.). Quovadis responded with a set-off and counterclaim in the amount of $188,992.68. On April 24, 2026, Associate Justice Wiebe issued Reasons for Decision finding WSL entitled to breach of contract damages in the net amount of $44,999.19 (HST incl.), of which $42,735.75 constituted WSL's lien. Quovadis was allowed a set-off of $24,084.80 (HST incl.), which produced the net amount in favour of WSL. The May 29, 2026 decision addressed costs and prejudgment interest.

Contractual clauses and terms at issue

A central contractual dispute concerned the applicable interest rate on overdue accounts. WSL's invoices stated that interest was due at 2% per month (24% per annum) on overdue amounts. By contrast, Contract article 5.3 specified that interest at 2% per annum above the Bank of Canada prime rate would apply for the first 60 days of overdue accounts, and 4% per annum above the prime rate thereafter. WSL alternatively claimed the rate under Courts of Justice Act (CJA), s. 128. The court found a clear discordance between the non-CJA rate claimed by WSL and what the Contract actually specified, and noted there was no evidence of the Bank of Canada prime rate at the relevant times.

Reasoning and analysis

On the question of costs, the court identified the result as the single most important factor and found that the delay-related issues — which drove the litigation — ended in no success for either party. On the remaining issues, WSL succeeded on approximately 35% of its claims, including unpaid invoice #2112 and interest on the holdback, net of the allowed Quovadis back-charges. The court found WSL to be the marginally successful party but determined that a significant reduction in its costs entitlement was warranted given the divided result, fixing WSL's costs at approximately 20% of its partial indemnity claim.

Regarding expert witness costs, the court accepted that Frank Galati — WSL's only expert witness — was the most credible and helpful witness at trial, particularly in assessing the Quovadis set-off and counterclaim. WSL sought full reimbursement of $16,155 (HST incl.) for Mr. Galati's fees. However, the court found that a large portion of his work related to deficiency items resolved through the bond action, and awarded only approximately half, being $8,000 (HST incl.).

The court also considered the parties' offers to settle. Quovadis made an offer on May 4, 2023 to pay WSL $20,596.22 (the WSL slab replacement extra only), open for five days, which the court found to be reasonable in the circumstances — even though it was $24,402.97 less than the eventual trial judgment. Two further offers made closer to trial — Quovadis offering WSL a payment of $97,000 plus substantial indemnity costs (August 26, 2025), and WSL seeking $140,000 plus interest and costs (September 3, 2025) — were both found to be irrelevant to costs, as they reflected unreasonable expectations on both sides on the eve of trial.

On the question of misconduct, Quovadis argued for substantial indemnity costs on the basis of Mr. Mackowiak's conduct, invoking Construction Act, s. 86(1), which permits such an award where a party knowingly participates in preserving or perfecting a frivolous, vexatious, or wilfully exaggerated lien. The court agreed this argument applied to WSL's claim of $24,456.25 plus HST for alleged excessive BBL inspections, which Mr. Mackowiak admitted was asserted as a "quid pro quo" with no basis in the Contract and no supporting proof of damages. However, the court declined to characterise WSL's other unsuccessful claims — for extra waterproofing, mobilization and demobilization, and pandemic-related productivity loss — as exaggerated, finding they failed only for lack of proof and notice. The court also noted Quovadis' own conduct warranted criticism: its delay in paying the holdback, non-payment of invoice #2112, and assertion of back-charges for BBL inspections without having given any prior notice of such a claim.

Ruling and overall outcome

The court awarded WSL costs calculated as $8,000 (for Mr. Galati's fees) plus 20% of WSL's non-Galati partial indemnity costs ($60,379), divided in half to account for Mr. Mackowiak's misconduct and WSL's rejection of the reasonable May 4, 2023 settlement offer — producing a total of $14,037.90, rounded up to $15,000. The court declined to award Quovadis substantial indemnity costs. On prejudgment interest, exercising its discretion under CJA s. 130, the court awarded WSL interest at 3% per annum on the judgment amount of $44,999.19, running from June 20, 2021 — the date invoice #2112 was due for payment. WSL was thus the successful party, with a costs award of $15,000 and prejudgment interest on a judgment of $44,999.19 at 3% per annum from June 20, 2021.