Court File and Parties

CITATION: Trifield Construction Company Ltd. v. HC Matcon Inc. et al., 2013 ONSC 7164

DIVISIONAL COURT FILE NO.: 595/12

DATE: 20131120

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: TRIFIELD CONSTRUCTION COMPANY LTD., Plaintiff/Appellant

AND:

HC MATCON INC., THE TORONTO TRANSIT COMMISSION and YORK UNIVERSITY, Defendants/Respondents

BEFORE: Pardu J.

COUNSEL: Vanessa A. Ibe, for the Plaintiff/Appellant

Robert J. Kennaley, for the Defendants/Respondents

HEARD: November 19, 2013

Endorsement

[1] By order dated October 18, 2013 this appeal was quashed. The issue of costs remains.

[2] The successful defendant HC Matcon Inc., claims partial indemnity costs of $29,862.69.

[3] There is no basis here to award the substantial indemnity costs it also claims.

[4] The plaintiff submits that the amount claimed is excessive and includes amounts for work done which was not properly part of the appeal. It submits that a reasonable amount for costs would be $6,500. It submits that costs of the successful defendant should be substantially reduced because the defendant’s counsel conducted himself in a way that was “unreasonable and obstreperous”. This claim is without support in the evidence.

[5] The plaintiff attempted to pursue the appeal without taking out the order from which it sought to appeal. An attendance before the administrative judge of the Divisional Court was necessary to resolve that issue in the defendant’s favour, and costs were reserved to the court dealing with the appeal. Attendances to settle the disputed form of the order are properly dealt with as part of the costs of the proceedings in the Superior Court.

[6] The defendant had to respond to the appeal, pending hearing of the motion to quash because of applicable time limits.

[7] The plaintiff argues that the costs claimed are disproportionate because its own lien claim is only $26,572.54. This does not reflect the fact that it was the counterclaim of $337,875.19 which was in issue on the appeal, which the plaintiff attempted to cap at an amount no higher than its own lien.

[8] After culling from the costs claimed amounts which do not relate to the appeal, but to the proceedings in Superior Court, I allow costs to the defendant of the appeal and the motion to quash fixed at $22,000 inclusive of disbursements and HST, payable in 30 days.

Pardu J.

Date: November 20, 2013