Citation and Court Information

CITATION: Men at Work General Contractors Ltd. v. Macdonald, 2015 ONSC 3350

DIVISIONAL COURT FILE NO.: 355/14

DATE: 20150526

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

Construction Lien Act

RE: MEN AT WORK GENERAL CONTRACTORS LTD. Applicant

AND: ROSS MACDONALD and JACQUELINE MARCIA PHILLIP Respondents

BEFORE: LEDERER J.

COUNSEL: Michael Meredith, for the Applicant Michelle R. Theberge, for the Respondents

COSTS ENDORSEMENT

[1] This was a motion seeking leave to appeal an order of costs made following a hearing by a Master pursuant to a reference to him of a lien claim and costs of a motion opposing the confirmation of the report given by the Master.

[2] The judge who heard the motion to oppose confirmation of the report of the Master had, by the time the issue of costs arose, retired. As a result, the issue of costs of the trial heard by the Master and the motion to oppose confirmation were dealt with by the Regional Senior Judge. The report did not recognize the lien claim but awarded damages of $15,002.00 to the applicant on the motion to oppose confirmation (Men At Work).

[3] Costs were requested by counsel for the applicant (Men At Work) for both the trial and the motion in the amount of $158,809.41. The Regional Senior Judge found this to be excessive and awarded costs of $45,000 to Men At Work.

[4] It is this order that Men At Work sought leave to appeal. The motion failed. The respondent on the motion opposing confirmation, the successful parties on the motion for leave to appeal (Ross MacDonald and Jacqueline Marcia Phillip), seek costs of the motion for leave to appeal of $5,950.00. This is opposed by Men At Work as being too high. It submits that costs should be awarded in the amount of $2,250, inclusive of “taxes, disbursements and HST”.

[5] Both parties made submissions which reflect on another motion between them, being a motion to extend time to commence an appeal of the order reflecting the refusal of the motion judge who subsequently retired to confirm the report of the Master. On that motion, costs of $4,200 were awarded. As will be apparent and not surprisingly, Men At Work think the costs awarded on this motion should be less than they were on the motion to extend time. Ross MacDonald and Jacqueline Marcia Phillip think costs should be higher. What happened on the earlier motion is not of much help. It was heard by another judge.

[6] It is difficult to appeal an order of costs. In this case, the costs sought were far in excess of the award that was made. The Regional Senior Judge found the request excessive. He applied the principle of proportionality. The motion for leave to appeal was not complicated. The fact that it took longer than it should have does not change my view. The propositions involved were fundamental. The costs sought are too high; the costs offered too low.

[7] I award costs payable by Men At Work to Ross MacDonald and Jacqueline Marcia Phillip in the amount $3,500, inclusive of fees, disbursements and taxes.

LEDERER J.

Date: 20150526