Court File Nos.:632/08 and 29/09

Released: 20090713

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Re: Gryphon Building Solutions Inc. v. Danforth Estates Management Inc.

Before: Karakatsanis J.

Counsel: Michael Tamblyn, Richard Oliver for the Defendant/Appellant

Lawrence Goldapple for the Respondent Gryphon Building Solutions Inc.

John M. Clarke for Ontario Roofing & General Contracting Services Ltd.

ENDORSEMENT ON COSTS

[1] In my decision dated June 24, 2009, I found that there was no jurisdiction to hear an appeal under the Construction Lien Act from the Master’s reasons before his report was confirmed. Instead, the Defendant/Appellant, Danforth Estates Management Inc. (Danforth), was required to bring a motion to oppose confirmation of the report.

[2] Danforth argues that there should be no costs as this was a novel question of law. However, the Master had indicated to the parties that the proper forum to challenge his decision was pursuant to a motion under Rule 54.09 and I found the appellant’s submissions regarding jurisdiction to be without merit. This appeal was unnecessary and costs should follow success on this issue. I am not satisfied however that Danforth’s conduct justifies costs on a substantial indemnity basis. The respondents shall have their costs on the issue relating to jurisdiction on a partial indemnity basis.

[3] I am not prepared to award costs to the respondents with respect to their submissions on the merits. I reserved on the preliminary objection as to jurisdiction and heard the parties on the merits. Although I offered to decide the merits as a Superior Court Judge pursuant to Rule 54.09, in the event I found I was without jurisdiction to determine the merits on appeal, the respondent Plaintiffs did not consent.

[4] Gryphon Building Solutions Inc. seeks $10,900, because the issues were important and proceeding with an appeal, instead of a motion, was entirely unnecessary given the Master’s advice to the parties. Ontario Roofing seeks costs of $7,098 all inclusive. They made their costs submissions on the basis that they were successful both on the jurisdictional issue and on the merits.

[5] The amount at stake on the merits was significant and issues on the merits were important to the parties, although not complex. The jurisdictional issue was not complex. The Master had advised Danforth of the appropriate forum to challenge his decision and this appeal was unnecessary. Gryphon took the lead on the jurisdictional issue and the jurisdictional argument was the same for both parties.

[6] Bearing in mind the factors noted above and the reasonable expectation of the parties, I find a total of $4,000, all inclusive, as the appropriate quantum of costs relating to the jurisdictional issue before me.

[7] The appellant shall pay costs fixed in the amount of $2,500, all inclusive, to Gryphon Building Solutions Inc. and costs fixed in the amount of $1,500, all inclusive, to Ontario Roofing.

Karakatsanis J.

Released: July 13, 2009