Court File and Parties

CITATION: Krypton Steel Inc. v. Maystar General Contractors Inc., 2018 ONSC 5695

DIVISIONAL COURT COURT FILE NO.: 776/17

DATE: 20180927

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: KRYPTON STEEL INC., Plaintiff/Appellant

AND:

MAYSTAR GENERAL CONTRACTORS INC., and THE CITY OF TORONTO, Defendants/Respondents

BEFORE: LEDERER J.

COUNSEL: Bruce R. Jaeger, for the Plaintiff/Appellant Iris Pichini, for the Defendants/Respondents

HEARD: In Writing

Endorsement

[1] This was an appeal from an Order of Master Short. He dismissed a lien claim but allowed the underlying action to continue. The lien claim was said to have expired as a result of the passage of time.

[2] Krypton Steel Inc. appealed the dismissal of the claim.

[3] The appeal was dismissed.

[4] The Respondent, Maystar General Contractors Inc. seeks its costs in the amount of $30,470.28 inclusive of fees, disbursements and taxes. This represents costs on a substantial indemnity scale.

[5] The request for the higher scale is justified by the assertion that as a result of the failure of the appellant to move the proceeding along, that is to take it to the trial before the Master that had been ordered, the respondent had been required to pay the fees necessary to hold in place the bond that stood as security for the claim and had allowed for the lifting of the lien.

[6] It is true that the general obligation to move proceedings forward lies with the plaintiff but that does not relieve the defendant of the ability to act where it is prejudiced. I am not prepared to award costs on an elevated scale. The appropriate scale is partial indemnity.

[7] On this basis the costs sought would be $20,905.06.

[8] The responding party accepts the hourly rates as reasonable but questions the time spent. This was an appeal founded on a narrow issue. The time spent was high.

[9] There is also a dispute over one of the disbursements, the amount paid to Westlaw for use of its database as part of the research undertaken. The appellant says that given that these services charge a monthly fee, the value sought ($1,304.25) must be too high. The implication is that the charge is for what it would cost to have carried out this work as an individual search rather than under any right counsel had to make use of it under some form of general contractual arrangement. While to my mind it is somewhat ambiguous the response does not deny that this is so. It concedes that there is a monthly charge but goes on to assert that it is appropriate to charge the cost that would be charged to the client by its counsel.

[10] As I perceive it, this suggests that the charge for the fees become a profit centre. The client pays the lawyer what would be paid for a single independent search where the lawyer pays a fee set by a general use contract for all the use of the site it makes. If this is so it is not something I would be prepared to transfer into an order for costs.

[11] Taking into account these factors I award costs to Maystar General Contractors Inc. in the amount of $15,000 inclusive of fees, disbursements and taxes.

Lederer J.

Date: September 27, 2018