CITATION: Yorkwest Plumbing Supply Inc. v. Nortown Plumbing (1998) Ltd. et al., 2014 ONSC 6825
DIVISIONAL COURT FILE NO.: 570/13, 571/13
DATE: 20141128
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO ACJ, SACHS AND MACKINNON JJ.
BETWEEN:
YORKWEST PLUMBING SUPPLY INC. Appellant
– and –
NORTOWN PLUMBING (1998) LTD., INTRACORP PROJECTS (MILTON ON THE ESCARPMENT) LTD., AND THE BANK OF NOVA SCOTIA PARTY Respondents
-and-
YORKWEST PLUMBING SUPPLY INC. Appellant
-and-
NORTOWN PLUMBING (1998) LTD., BURL 9 DEVELOPMENTS LIMITED, AND SUNDIAL HOMES (BURL 7) LIMITED Respondents
John Lo Faso, WA. McLauchlin and Edward W Lynde, for the Appellant
Theodore B. Rotenberg, for the Respondent IntraCorp Projects Ltd.
Karey Anne Dhirani and James M. Wortzman, for the Respondents Burl 9 Developments Limited and Sundial Homes (Burl 7) Limited
HEARD: In Writing.
MARROCCO A.C.J.S.C.:
[1] These two appeals were heard together. They raise the same legal issue. Resolution of one resolved the other.
[2] The respondents in both appeals were successful. The respondents Burl 9 Developments Limited and Sundial Homes (Burl 7) Limited seek costs on a partial indemnity basis up to January 28, 2014 and substantial indemnity basis thereafter. They base their claim for substantial indemnity costs upon the fact that they made an offer to settle under Rule 49 which was more favourable than the outcome of the appeal.
[3] We agree that the respondents achieved a more favourable the result than the terms of their offer to settle. We also agree that substantial indemnity costs are defined in Rule 1.03 as 1.5 times an award made on a partial indemnity basis.
[4] The outcome of the appeal was important to the respondents because a successful result also successfully determined the action.
[5] The appeal was complex in the sense that the consequences of interpreting the Construction Lien Act in a manner consistent with the appellant’s submission had to be considered. The issues raised in this regard were referred to in the Court’s reasons dismissing the appeal.
[6] The appeal was argued over the course of one day in the Divisional Court. Neither the appellant nor the respondents unnecessarily delayed this matter.
[7] The respondent IntraCorp Projects (Milton on the Escarpment) Ltd. did not make an offer to settle and accordingly seeks costs on a partial indemnity basis. In my view this compensates for any difference in the hourly rates of counsel for IntraCorp Projects and counsel for Burl 9.
[8] The appellant submits that it should not pay costs because the issue raised on this appeal is “novel.” In Baldwin v. Daubney, 2006 33317 (ON SC), [2006] O.J. No. 3919, Spence J. considers what makes an issue “novel” for the purposes of cost orders, He writes at para. 20 :
[I]f the law provides adequate guidance for the resolution of the issue, then even though the issue might well not have been previously decided, it would not properly be regarded as “open.”
[9] Some examples of when the law does not provide adequate guidance for the resolution of the issue include where there are conflicts among the cases or a limitation on the appropriate scope of their application (see: Ramara (Township) v. Mullen, 2012 ONSC 2959, at para. 8).
[10] Finally, novel issues of law do not necessarily give rise to an order that no costs will be awarded. As the Divisional Court wrote in Tanner v. Clark, 2002 34779 (ON SCDC), [2002] O.J. 3702, 164 O.A.C. 22,8 at para. 4:
[N]ot all novel issues of law give rise to such an order. Such may be the case where the matter involves a public body trying to elucidate the law or where a party has raised a constitutional issue or one otherwise of broader interest. However, where, as in the two matters before us, the parties were pursuing their own disclosure interests, we do not consider it appropriate to deprive the successful party of costs.
[11] The appellant’s argument had the effect of making section 20(2) of the Construction Lien Act virtually meaningless. I do not view this as the type of “novel argument” which should result in no cost consequences for the losing party. Section 20 of the Construction Lien Act has been interpreted in other cases. Moreover, in its factum filed with the learned motions judge below the appellant asked for costs if it was successful.
[12] Finally the court must take into consideration that the respondents to both appeals have already been awarded costs in the amount of $28,766.61 to IntraCorp and $22,276.14 to Burl 9 in the court below and that precisely the same issue of statutory interpretation was argued in this court.
[13] The successful respondents on each of these two appeals are each entitled to costs in the amount of $7500 plus disbursements and all applicable taxes.
MARROCCO A.C.J.S.C.
SACHS J.
MACKINNON J.
Released:
CITATION: Yorkwest Plumbing Supply Inc. v. Nortown Plumbing (1998) Ltd. et al., 2014 ONSC 6825
DIVISIONAL COURT FILE NO.: 570/13, 571/13
DATE: 20141128
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
YORKWEST PLUMBING SUPPLY INC. Appellant
BETWEEN:
NORTOWN PLUMBING (1998) LTD., INTRACORP PROJECTS (MILTON ON THE ESCARPMENT) LTD., AND THE BANK OF NOVA SCOTIA PARTY Respondents
NORTOWN PLUMBING (1998) LTD., BURL 9 DEVELOPMENTS LIMITED, AND SUNDIAL HOMES (BURL 7) LIMITED Respondents
ENDORSEMENT CONCERNING COSTS
Released: 20141128