CITATION: P & J General Contracting Inc. v. 1422604 Ontario Inc., 2011 ONSC 454
DIVISIONAL COURT FILE NO.: 542/10
DATE: 20110119
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
P & J GENERAL CONTRACTING INC.
Applicant
– and –
1422604 ONTARIO INC.
Respondent
Robert G. Tanner, for the Applicant
Michael E. Caruso, for the Respondent
HEARD at Toronto: January 19, 2011
HERMAN J. (orally)
[1] The applicant seeks leave to appeal from the order of a motion judge dated October 28, 2010. The applicant claims that the motion judge erred when he denied the request for an order that the respondent indemnify it for its full costs of the proceedings.
[2] The applicant submits that leave to appeal is warranted because there is a conflicting case, that is, Turner et al. v. Mailhot et al., (1985) 1985 2225 (ON SC), 50 O.R. (2d) 561. In that case Reid J. held that the applicant, having obtained leave of the Court to bring a derivative action, had a prima facie right to indemnification. He went on to discuss the factors that a court might take into consideration and stated as follows:
Yet the right is merely prima facie. There may, in my opinion, be considerations arising out of the circumstances of particular cases that might affect the question whether that prima facie right should be turned into a proven right. I would think, for instance, that financial inability to carry on an action would weigh heavily in favour of a grant of indemnity and may well overbear any considerations raised by a respondent.
In the absence of such an element, however, other factors might predominate.
[3] In the result, Reid J. made an order for partial indemnity.
[4] In my opinion, this is not a conflicting authority. The motion judge decided that given the considerations in the case before him, he was not prepared to order indemnification for costs. A conflicting authority must represent a difference in principle, not merely a difference in outcome. (Holt v. Anderson (2005), 2005 38583 (ON SCDC), 205 O.A.C. 91 (Div. Ct.)).
[5] The applicant submits that it is not possible to know whether the motion judge applied the correct principle because he does not say in his reasons what principle he was applying.
[6] This case has a long history. The action was commenced in 2003. The motion judge would have been aware of that history. I am advised that counsel referred the motion judge to the principle in Turner v. Mailhot in argument. That principle directs the judge to consider the circumstances of the case. The motion judge indicated that he did so. Given this, it is not, in my opinion, desirable to grant leave to appeal. The application is therefore dismissed.
COSTS
[7] In reasons delivered orally today, leave to appeal is denied. Costs are awarded to the respondent of $1,000, inclusive, payable forthwith.
HERMAN J.
Date of Reasons for Judgment: January 19, 2011
Date of Release: February 1, 2011
CITATION: P & J General Contracting Inc. v. 1422604 Ontario Inc., 2011 ONSC 454
DIVISIONAL COURT FILE NO.: 542/10
DATE: 20110119
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HERMAN J.
BETWEEN:
P & J GENERAL CONTRACTING INC.
Applicant
– and –
1422604 ONTARIO INC.
Respondent
ORAL REASONS FOR JUDGMENT
HERMAN J.
Date of Reasons for Judgment: January 19, 2011
Date of Release: February 1, 2011