Court File and Parties

Citation: Men at Work General Contractors Ltd. v. Macdonald, 2015 ONSC 383 Divisional Court File No.: 355/14 Date: 2015-01-20 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

Heard at Toronto: January 8, 2015

Endorsement

[1] This is a motion for leave to appeal an order as to costs made by Mr. Justice Morawetz.

[2] The plaintiff (the applicant) is a contractor. It was engaged by the two defendants (the respondents) to do work on a property they owned in the High Park area of the City of Toronto. There were cost overruns. The respondents stopped paying. The applicant brought a construction lien action claiming $60,937.76. The respondents counterclaimed, seeking $400,000 ($150,000 in negligence, $150,000 for breach of contract and $100,000 for lost rental income).

[3] The matter was referred to Master Polika.[^1] He conducted a trial over two days. The lien claim did not succeed, but the applicant was awarded $15,002.00 in damages. The counterclaim failed in its entirety. Master Polika denied the applicant its costs “without allowing the parties to make any submissions”.[^2]

[4] The applicant brought a motion to oppose the confirmation of the Report of the Master. The applicant sought to restore its lien claim, obtain its full damages of $60,937.76, as well as an award for its costs of both the trial of the Master and the motion to oppose confirmation.

[5] The motion was heard by Madam Justice Ellen Macdonald on November 22, 2012 and her decision rendered on June 18, 2013^3. She found that the Master had “disregarded the plain language of the contract” and determined that “[f]or all the above reasons, the appeal is allowed”. The Applicant was the “successful party on the appeal”.[^4] These reasons do not contain any explanation of, or identify the monetary implications of, the decision. They include no statement as to the value of the award they make. With respect to costs, Madam Justice Macdonald said only that the applicant “…should have costs on a partial indemnity basis” and that “[t]he parties may make submissions on costs at a time convenient to counsel and The Court”.[^5]

[6] Counsel for the respondents was uncertain as to the substance of the order that had been made. The assistant to Madam Justice Macdonald advised that the proper course was to write a letter. On September 18, 2013, counsel for the respondents wrote to Madam Justice Macdonald, but delivered the letter by e-mail to her assistant. It sought clarification as to the remedy provided; in particular, were damages being awarded and, if so, in what amount and were costs to cover only the motion or the entire proceeding? Counsel for the applicant wrote to counsel for the respondents and to Madam Justice Macdonald complaining that it was improper to write a letter to the judge and advising that, so far as he was concerned, the reasons did not lack clarity. Counsel outlined the order he was seeking on behalf of the applicant.

[7] On September 27, 2013, a representative of the Office of the Chief Justice of the Superior Court wrote to both counsel. She advised that it was inappropriate to write directly to a judge without the consent of all parties.[^6] She referred to the rules that provide for the settling of an order,[^7] to the fact that Madam Justice Macdonald had retired and to the rule that, in such circumstances, provided for another judge to settle and sign the order.[^8]

[8] On February 25, 2014, the parties obtained May 5, 2014 as a hearing date for settling the order and a motion, to be brought by the respondents, to “reopen” the case.[^9] Shortly before the appointed day, counsel for the respondents realized that the application for a rehearing had to be brought before either the Chief Justice of the Superior Court or the Regional Senior Judge.[^10] The motions were heard by the Regional Senior Judge (Mr. Justice Morawetz) on May 21, 2014.

[9] The Endorsement of the Regional Senior Judge was released on July 15, 2014. In it, he found that the sections of the Courts of Justice Act and the rules relied on in furtherance of the request for a new hearing or reconsideration of the decision made by Madam Justice Macdonald do not apply. The proper route to query Her Honour’s decision would be an appeal.[^11] Insofar as the form of the order was concerned, where a judge ceases to hold office after making an order but before it is signed, another judge may settle and sign it. “That would be the appropriate procedure to follow in this case.”[^12] The order made by Madam Justice Macdonald was settled by the Regional Senior Judge on or about October 16, 2014.

[10] On December 11, 2014, the respondents brought a motion for an extension of time in which to appeal the order of Madam Justice Macdonald. The appeal, if it is to proceed, would seek either to have the report of Master Polika confirmed or to have the matter sent back for a new trial. The motion to extend the time was pending when the motion I am asked to decide was heard.

[11] In his Endorsement, the Regional Senior Judge also considered the issue of costs, not just of the motion heard by Madam Justice Macdonald, but also of the trial conducted by Master Polika. The applicant requested costs of $158,809.41, including fees, disbursements and HST. Considering the amounts involved (a claim of $60,937.76 and a counterclaim of $400,000 that had been “particularized” to damages of $63,000), the Regional Senior Judge found the claim for costs “extreme and unrealistic”.[^13] He awarded costs to the applicant in the amount of $45,000.

[12] This is the order that the applicant seeks leave to appeal.

[13] The court exists, in part, to resolve disputes between our citizens that they are unable to resolve for themselves. Nonetheless, some discretion needs to be brought to bear on a decision to make use of the facility the court offers. In this case, any reasonable consideration of what was at stake measured against the cost of coming to court on this motion and any appeal that might proceed as a result ought to have left the parties searching for a different answer. The Regional Senior Judge pointed out that this was “a relatively straightforward construction lien matter.”[^14] It is not likely that an award of costs could exceed the amount awarded.[^15] On this basis, the amount in issue on any appeal as to costs would be ($60,947.76 - $45,000) $15,947.76. To my mind, this extends to any effort to have the matter reheard or the report of Master Polika confirmed. There, the amount in issue would be ($60, 947.76 - $15,002.00) $45,945.76. If the parties could not see this for themselves, it should have been made clear by the direction of the Senior Regional Judge that they attend for a mediation before Mr. Justice McEwan. On the motion heard by me, counsel for the applicant preferred to question why the mediation was necessary given that the substance of the claim had been dealt with months before. The mediation failed. Before the motion began, the parties were asked to see if they could, through discussion, find a resolution on their own. They could not.

[14] Costs are, generally, considered to be a matter of discretion. Appeals of cost orders are unusual:

Leave to appeal cost orders will be granted only in the most obvious cases and very sparingly.[^16]

[15] For leave to be granted, the judge must be shown to have acted on a wrong principle, to have misapprehended significant facts or to have made the determination in a non-judicial manner:[^17]

In order to succeed on an application for leave to appeal, the Court must be persuaded that the Trial Judge exercised his discretion on wrong principles. The Applicant must show that there are strong grounds upon which the appellate court could find that the judge erred in the exercise of her/his discretion.[^18]

[16] A test of reasonableness applies:

In recent cases, the Ontario Court of Appeal has emphasized that there is an ‘overriding principle of reasonableness’ that must govern the judicial exercise of fixing costs.[^19]

[17] In this case, the test is not met.

[18] Counsel for the applicant expressed concern that the Regional Senior Judge had been misled as to the facts. This arose because, as part of her effort to explain the background, counsel for the respondents sent part of an exchange of e-mails that concerned settlement discussions between the parties to the Regional Senior Judge. The amounts of the offers involved were redacted. Counsel for the applicant took the position these e-mails were privileged and should never have been delivered. They created a false impression. They misled the Regional Senior Judge into believing that the applicant had unreasonably failed to resolve this matter when, in fact, it was the respondents who were to blame. They kept relying on or returning to the same offer. Counsel for the applicant did not go so far as to say that the Regional Senior Judge was biased by this alleged misunderstanding, only that it “affected” his decision.

[19] Counsel for the respondents acknowledged that the e-mails should not have been sent as they were. More should have been redacted. This is so, but there is nothing to suggest that the Regional Senior Judge was misled or that his decision was in any measure “affected” or influenced by the delivery of the documents in question. To the contrary, his reasons are infused with concerns for the waste of time and effort on the part of both sides:

On a review of the comprehensive cost submissions of both parties, I have arrived at the conclusion that both parties have been responsible for increasing the cost and complexity of this proceeding.[^20]

and

I question the benefits of so much time and effort on costs outlines, as much as I do with spending so much time and effort on this proceeding in its entirety.[^21]

[20] In the modern day, we are concerned that any award of costs should be proportional, that is, demonstrate some relationship to the complexity and value of the issues involved.[^22] In this case, counsel for the applicant takes these relationships to be assessable purely as a mathematical exercise. From the pleadings, he accounted for the claim and the counterclaim together representing ($60,000 + $400,000) $460,000. Having subtracted the value of disbursements and HST, the costs award sought by the applicant was $137,007. Accordingly, counsel proposed that the costs claimed represent approximately ($135,000 divided by $460,000 = .293 x 100) 29% of the “range between success and failure in the litigation”.[^23]

[21] Similarly, counsel for the applicant pointed out its claim for costs was based on 394.5 hours worked over a 4.5 years for the trial before Master Polika and the motion heard by Madam Justice Macdonald. This was said by the Regional Senior Judge to be “grossly excessive”.[^24] To counsel for the applicant, it is reasonable and proportionate when considered in relation to the hours docketed by counsel for the respondents, being 743 hours.

[22] Ultimately, the issue of proportionality is not determined by these kinds of calculations:

There have to be practical and reasonable limits to the amounts awarded for costs and those amounts should bear some reasonable connection to the amounts that should reasonably have been contemplated. This exercise cannot be reduced now to the rubber stamping [of] a bill of costs that resembles the cash register slip of a shopper who has gone on a spree.[^25]

[23] The root of the determination that the value for costs reflects an approach that is not proportionate is found in the observations of the Regional Senior Judge to the effect that the claim is “extreme and unrealistic” when considering the amount involved. It is worth noting that, on its face, the counterclaim could not have been worth the $400,000 pleaded. The $150,000 sought for negligence and the $150,000 claimed on account of breach of contract represent the same alleged harm. It is the same damage supposedly caused by one of two causes of action. Whatever its substance, a claim for lost rent would, as general rule, not be complicated, complex or time- consuming. It would be rare that, at trial, a counterclaim for the full amount would be claimed. In this case, once particularized, the counterclaim sought was reduced to $63,000.

[24] In their submissions to the court, both counsel acknowledged that the times referred to as representing the work done do not reflect the amounts that their respective clients would be charged. In any case, as the Regional Senior Judge noted, this was not a complicated matter. It did not demand the participation of three relatively senior counsel. “It seems to me that this is the type of case that requires the services of one lawyer who need not be a senior counsel.”[^26] The Regional Senior Judge was aware of and considered the fact that the lawyers for the respondents docketed 753 hours, but that did not alter his conclusion.[^27] I agree with the Regional Senior Judge, this is not a case where the costs awarded should exceed the amount in issue. To do so would fail to meet the overarching principle that the costs awarded must be reasonable:

The Zesta decision is not simply one of the factors to be considered along with a combination of factors. It is more than that. The case stands for the proposition that the award must reflect ‘more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.’ This is a fundamental concept in fixing or assessing costs.[^28]

[25] Such an order would, in this case, be disproportionate.

[26] Rule 57.01 instructs us on factors, in addition to the result in the proceeding and any written offer to settle, that “may” be considered in exercising the court’s jurisdiction to award costs. As reliance on the word “may” suggests, there is no requirement that each of the factors listed as part of the rule be accounted for in any decision respecting an award of costs. Nonetheless, counsel for the applicant complains that, despite their inclusion in the lengthy written submissions filed with the court in respect of the claim for costs, the Regional Senior Judge failed to address various of the factors mentioned in r. 57.01(1). In making this submission, counsel relied on Culligan Springs Ltd. v. Dunlop Lift Truck (1994) Inc.[^29] In that case, leave to appeal the order as to costs was granted as a result of the failure of the trial judge to properly consider the impact of the principle of proportionality. He had failed to account for the fact that, although a full trial had been conducted, the matter had begun under and should have been considered as being governed by the “Simplified Procedures”.[^30] Following from Trafalgar Industries of Canada Ltd. v. Pharmax[^31], the trial judge should have, but failed to, account for the understanding that “...the Simplified Procedures were introduced to promote affordable access to justice...”[^32] and that, in furtherance of this idea, “...[c]osts awards under the Simplified Procedures, historically have been significantly lower than under the ordinary procedure.”[^33] Accordingly, it was not plain and obvious that the trial judge had applied the “proportionality principle” as outlined in Trafalgar Industries of Canada Ltd. v. Pharmax and leave to appeal was granted.

[27] On the appeal, it was determined that the trial judge had failed to properly deal with the issue of proportionality. He had acted on a wrong principle. The Divisional Court went on to consider whether the there was a further error in its consideration of “...the amount of costs the unsuccessful party could reasonably expect to pay...” This is one of the criteria found in Rule 57.01.[^34] As counsel for the applicant sees it, “...the lower court’s failure to consider...the reasonable expectation of the losing party, was a sufficient basis for appellate intervention.”[^35] Counsel relies on this as demonstrating that a failure to consider a single criteria from those listed in r. 57.01(1) can be the foundation for an appeal of an order as to costs. Based on this supposed example, counsel for the applicant goes on to say that the failure of the Regional Senior Judge to consider “5 specific Rule 57 criteria”[^36] demonstrates an error in principle requiring that leave to appeal be granted. Counsel has misread the appeal decision in Culligan Springs Ltd. v. Dunlop Lift Truck (1994) Inc.[^37] It was not the failure to consider the question of the expectations of the unsuccessful party. The question had been considered. It had not been considered properly. Rather than examine the issue from the perspective of the losing party, the trial judge had considered the impact on the respondents who had succeeded at the trial. Thus, the trial judge had acted on a wrong principle.

[28] I repeat, there is nothing that suggests that a judge is obliged to refer to each of the criteria found in Rule 57.01.

[29] In this case, the Regional Senior Judge was aware of the concern for the expectations of the unsuccessful party:

I have considered the submissions filed by the parties and I have also taken into account the facts enumerated under Rule 57, including the time spent, the results achieved and the complexity of the matter. In addition, I have also taken into account the principles set forth by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3rd) 291 (C.A.), specifically that the overall objective of fixing costs is to fix an amount that is fair and reasonable for an unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant.[^38]

[30] In the succeeding paragraph, the Regional Senior Judge outlined the length of the costs submissions he had reviewed:

I have reviewed the 95 paragraph, 16 page submission of the Defendants, together with the supporting documentation as well as the 29 paragraph, 8 page submission of counsel to Men at Work, together with supporting documentation, and the 45 page responding cost record. In total, the costs submissions and supporting documentation of the parties covered approximately 350 pages.[^39]

[31] In her factum, counsel for the respondents reports that, at the time of the motion, the Regional Senior Judge advised the parties that he had read all the Costs Submissions and did not require any further oral submissions.[^40] This was not contested during the argument on this motion for leave to appeal.

[32] There is no error in principle associated with the Regional Senior Judge’s treatment of the criteria found in Rule 57.01.

[33] Counsel for the applicant makes a further submission suggesting a reason for leave to appeal the costs order made by the Regional Senior Judge. A settlement offer, in compliance with r. 49.10 (1)[^41], was made by the applicant. The factum filed on behalf of the applicant notes that “...among other factors relating to costs, [the applicant] had achieved a result more favourable than the $39,000 Offer to Settle, served in December of 2008, three months before the lawsuit began, and sought substantial indemnity costs in accordance with Rule 49”.[^42]

[34] The decision made by the Regional Senior Judge notes that he took this into account:

In arriving at a reasonable amount for costs in the circumstances of this case, I have taken into account that Men at Work achieved a result more favorable than its Offer to Settle. This gives rise to the submission of Men at Work that it is entitled to costs on a substantial indemnity basis following the submission of the Offer to Settle. However, the motions judge held that costs are on a partial indemnity basis. Therefore, that is the applicable basis for granting an award of costs.[^43]

[35] Accordingly, the Regional Senior Judge, in making his ruling, followed the decision of Madam Justice Macdonald that costs had been awarded on a partial indemnity scale. What remained were submissions and a decision as to the value of the costs to be awarded at that scale.

[36] The decision of Madam Justice Macdonald ends with the following:

For all of the above reasons, the appeal is allowed. [The Applicant] being the successful party on this appeal should have costs on a partial indemnity basis. The parties may make submissions on costs at a time convenient to counsel and The Court.[^44]

[Emphasis added]

[37] Counsel for the applicant suggested that this does not represent a decision that costs are to be on a partial indemnity scale. The use of the word “should” does not demonstrate a determination, but only the prospect of what the judge anticipated once submissions had been made. I do not accept this understanding. I venture to say that the use of the word “should” in this way, by judges, is not unusual. Those accustomed to reading decisions of the court would understand such usage as demonstrative of a decision being made. Be that as it may, conventionally, “should” is “used to indicate obligation, duty or correctness.”[^45] Used as it was in the Reasons for Decision of Madam Justice Macdonald, it indicated the obligation of the respondents to pay the costs of the applicant at a partial indemnity scale. As such, it demonstrates that, as a result of the decision made, the respondents are obliged (or have a duty) to pay.

[38] The problem is that Madam Justice Macdonald made this decision without having heard any submissions as to costs, in particular the scale of costs to be paid. In deciding not to recognize the settlement offer made by the applicant in December of 2008 as a consideration in awarding costs on an elevated scale, the Regional Senior Judge relied on the determination made by Madam Justice Macdonald. He was required to do so. There was no, nor is there now, any appeal of her order. While the respondents have a motion extant seeking to extend the time to appeal Her Honour’s decision, there is no such motion brought on behalf of the applicant. In considering the motion of the respondents to the effect that Madam Justice Macdonald had not given a decision, the Regional Senior Judge found that, while the respondents may be of the view that the decision of Madam Justice Macdonald contained an error of law, that did not bring the issue within the scope of s. 123(2) of the Courts of Justice Act.[^46] “Section 123...provides guidance where a judge dies, retires or otherwise becomes incapacitated while still having outstanding work. It does not seek to address concerns a litigant might have with the content of a decision that has been rendered.”[^47] R. 59.06(1) deals with orders where there has been an accidental slip or omission, or an amendment is required in respect of any particular on which the court did not adjudicate. The Regional Senior Judge determined that Madam Justice Macdonald did adjudicate “on the issue”.[^48] Similarly, r. 59.04(3) provides that, where a judge ceases to hold office after making an order but before it is signed, another judge may settle and sign the order. In the end, that is what the Regional Senior Judge did in October of 2014.[^49] Neither of the rules to which he was referred allowed the Regional Senior Judge to look behind the substance of the order made by Madam Justice Macdonald. If she failed in some way to carry out the appropriate procedure, it may be that this was an error in law. If so, that is the subject for an appeal of the order made by her, but not that of the Regional Senior Judge. The authority under which he acted would not allow for that result.

[39] In any case, there is no substantive basis for any appeal. The matter was not complicated. It could have been and should have been dealt with in a more summary fashion. Both parties contributed to unnecessary delay. The costs sought were far too high. The principle of proportionality, correctly applied, would make it unreasonable to award costs at the value requested or for the hours claimed. There was no justification to award costs at an elevated scale. To put it simply, an early offer to settle is not a licence to accrue excessive costs.

[40] Finally, counsel for the applicant complains that the Regional Senior Judge provided no opportunity for the parties to make submissions as to costs of the motion he heard and made no order. This is said to be “a further error in principle”.[^50] Counsel were advised that I did not believe that this was, properly, the subject of an appeal. They were told that, if they wished to pursue this claim, it should be taken up with the Regional Senior Judge. As matters stand, his reasons make no comment on the subject.

[41] For the reasons reviewed, leave to appeal costs of the trial before Master Polika and the motion before Madam Justice Macdonald is refused.

[42] No submissions were made as to costs of this motion. If the parties are unable to agree, I will consider written submissions as follows:

1. On behalf of the respondents, no later than 15 days after the release of these reasons. Such submissions are to be no longer than 3 pages, double-spaced, not including any Costs Outline, Bill of Costs or case law that may be provided.

2. On behalf of the applicant, no later than 10 days thereafter. Such submissions are to be no longer than 4 pages, double-spaced, not including any Costs Outline, Bill of Costs or case law that may be provided.

3. On behalf of the respondents, in reply, if necessary. Such submissions to be no longer than 1 page, double-spaced.

LEDERER J.

Date: 2015-01-20

[^1]: Construction Lien Act, R. S.O. 1990 Ch. C.30, s. 58(1).

[^2]: Men at Work General Contractors Ltd. v. MacDonald et al, 2013 ONSC 4211 (per Madam Justice Macdonald), at para. 14.

[^4]: Ibid, at paras. 13 and 15.

[^5]: Ibid, at para. 15.

[^6]: The letter refers to r. 1.09 of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194: 1.09 When a proceeding is pending before the court, no party to the proceeding and no party’s lawyer shall communicate about the proceeding with a judge, master or case management master out of court, directly or indirectly, unless, (a) all the parties consent, in advance, to the out-of-court communication; or (b) the court directs otherwise.

[^7]: r. 59.04(10) and r. 59.04(11).

[^8]: r. 59.04(3).

[^9]: Courts of Justice Act, R.S.O. 1990, c. C.43 at s. 123(4); and, see r. 59.06.

[^10]: Ibid, (Courts of Justice Act), at s. 123(1) and (4).

[^11]: Men at Work General Contractors Ltd. v. MacDonald et al, 2014 ONSC 4176 (per Mr. Justice Morawetz), at para. 14.

[^12]: Ibid, at para. 20.

[^13]: Men at Work General Contractors Ltd. v. MacDonald et al, supra, (per Mr. Justice Morawetz (fn. 11)), at para. 14.

[^14]: Ibid, at para. 26.

[^15]: The Regional Senior Judge said as much when he commented: This is not a case where costs awarded should exceed the amount in issue. (Ibid, at para. 29).

[^16]: The decision respecting the motion for leave to appeal in Culligan Springs Ltd. v. Dunlop Lift Truck (1994) Inc., 2005 32571, at para. 15 (ON SC), referring to Ventin v. Ferguson, (1995), O.J. No. 2789 (Ont. Gen. Div.), at p. 4; and, Orlando Corp. v. Bothwell-Accurate Co., [2004] O.J. No. 2802 (Ont. C.A.). Also see: Van Damme v. Gelber, 115 OR (3d) 470, 2013 ONCA 388, at para. 32.

[^17]: The Children’s Aid Society of the Niagara Region v. R. DeG. 2005 11187 (Ontario S.C.J.D.C.), at para. 12, referring to B. (R.) v. Children's Aid Society of Metropolitan Toronto, 1995 115 (SCC), [1995] 1 SCR 315, at p. 404; and, Children’s Aid Society of Hamilton-Wentworth v. S.R. 2003 88989 (ON SCDC), [2003] O.J. No. 3075.

[^18]: Supra, (Culligan Springs Ltd. v. Dunlop Lift Truck (1994) Inc., (fn. 16)), at para. 16, referring to Levy v. Downtown Fine Cars Inc., [1997] O.J. No. 4414 (Div. Ct.); and, see: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para. 29, referring to Open Window Bakery Ltd., 2004 SCC 9, [2004] S.C.J. No. 72, 2004 S.C.C. 9, at para. 27. It should be said that Van Damme v. Gelber (see fn. 16) is an example where leave to appeal costs was given and the appeal as to costs allowed on the basis that the judge had made a significant error in principle in awarding costs on a substantial indemnity basis.

[^19]: Supra, (Culligan Springs (fn. 16)), at para. 19, referring to Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (On CA), [2004] O.J. No. 2634; Moon v. Sher, 2004 39005 (ON CA), [2004] O.J. No. 4651; and, Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, 2005 1042 (ON CA), [2005] O.J. No. 160.

[^20]: Men at Work General Contractors Ltd. v. MacDonald et al, supra, (per Mr. Justice Morawetz (fn. 11)), at para. 28.

[^21]: Ibid, at para. 28.

[^22]: r. 1.04 (1.1), which says: In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

[^23]: Factum of Men at Work Construction Ltd., at para. 54.

[^24]: Men at Work General Contractors Ltd. v. MacDonald et al, supra, (per Mr. Justice Morawetz (fn. 11)), at para. 26.

[^25]: Toronto (City) v. First Ontario Realty Corp., 2002 49482 (ON SC), 59 O.R. (3d) 568; 117 ACWS (3d) 211, 2002 49482 (ON SC), at para. 26, referring to Jhaj v. York University, [2002] O.J. No. 128.

[^26]: Men at Work General Contractors Ltd. v. MacDonald et al, supra, (per Mr. Justice Morawetz (fn. 11)), at para. 26.

[^27]: Ibid, at para. 26.

[^28]: Gratton-Masuy Environmental Technologies Inc. v. Building Materials Evaluation Commission, 170 O.A.C. 388 2003 8279 (ON SCDC), at para. 16.

[^29]: (2006), 13419 (Div. Ct.). This is the appeal as to costs. The decision to grant leave to appeal is referred to at fns. 16, 18 and 19.

[^30]: See: R. 76.

[^31]: (2003) 64 O.R. (3d) 288 (S.C.J.), 2003 40313 (ON SC).

[^32]: Culligan Springs Ltd. v. Dunlop Lift Truck (1994) Inc., supra (fn. 16), at para. 20, referring to Trafalgar Industries of Canada Ltd. v. Pharmax, supra, at paras. 5 and 6.

[^33]: Ibid, (Culligan Springs Ltd. v. Dunlop Lift Truck (1994) Inc., supra, (fn. 16)), at para. 20.

[^34]: R. 57.01(1)(0.b).

[^35]: Factum of Men At Work General Contractors Ltd., at para. 92.

[^36]: Ibid, at para. 93.

[^37]: Supra, (fn. 29).

[^38]: Men at Work General Contractors Ltd. v. MacDonald et al, supra, (per Mr. Justice Morawetz (fn. 11)), at para. 27.

[^39]: Ibid, at para. 28.

[^40]: Factum of the Respondents, at para. 74.

[^41]: R. 49.10(1) states: Where an offer to settle, (a) is made by a plaintiff at least seven days before the commencement of the hearing; (b) is not withdrawn and does not expire before the commencement of the hearing; and (c) is not accepted by the defendant, and the plaintiff obtains a judgment as favourable as or more favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer to settle was served and substantial indemnity costs from that date, unless the court orders otherwise.

[^42]: Factum of Men At Work General Contractors Ltd., at para. 6.

[^43]: Men at Work General Contractors Ltd. v. MacDonald et al, supra, (per Mr. Justice Morawetz (fn. 11)), at para. 25.

[^44]: Men at Work General Contractors Ltd. v. MacDonald et al, supra, (per Madam Justice Macdonald (fn. 2)), at para. 15.

[^45]: Concise Oxford English Dictionary, Eleventh edition (revised) 2006.

[^46]: Supra, (fn. 9).

[^47]: Men at Work General Contractors Ltd. v. MacDonald et al, supra, (per Mr. Justice Morawetz (fn. 11)), at paras. 17 and 18.

[^48]: Ibid, at para. 20.

[^49]: See para. [9], above.

[^50]: Factum of Men At Work General Contractors Ltd., at paras. 94 and 95.