DATE: 20051116
DOCKET: C36248 and C36348
COURT OF APPEAL FOR ONTARIO
CRONK, GILLESE and ARMSTRONG JJ.A.
B E T W E E N :
JOHN SUSIN
John Susin in person
Plaintiff (Appellant in Appeal)
- and -
EUGENE GOODREAU AND GOODREAU EXCAVATING LTD., PRECISION BUILDERS (WINDSOR) LIMITED, FIDELITY INSURANCE COMPANY OF CANADA and PASQUALE D’AMORE
Luigi DiPierdomenico for Precision Builders (Windsor) Limited and Pasquale D’Amore
John C. Taylor, Q.C. and Denise M. Bolohan for Goodreau Excavating Ltd. and Eugene Goodreau
Defendants Precision Builders (Windsor) Limited and Pasquale D’Amore (Respondents in Appeal)
Defendants, Eugene Goodreau and Goodreau Excavating Ltd. (Respondents in Appeal)
AND BETWEEN:
JOHN SUSIN
Plaintiff (Respondent in Appeal)
- and -
EUGENE GOODREAU AND GOODREAU EXCAVATING LTD., PRECISION BUILDERS (WINDSOR) LIMITED, FIDELITY INSURANCE COMPANY OF CANADA and PASQUALE D’AMORE
Defendants Precision Builders (Windsor) Limited and Pasquale D’Amore (Appellants in Appeal)
Defendants, Eugene Goodreau and Goodreau Excavating Ltd. (Respondents in Appeal)
Heard: May 19, 2005
On appeal from the judgment of Justice John H. Brockenshire of the Superior Court of Justice dated March 30, 2001.
ARMSTRONG J.A.:
[1] This matter arises out of a federal government project to construct a marina in Belle River, Ontario which is located on the shore of Lake St. Clair. The construction took place in 1984. The trial was held in 2000 and 2001 before Brockenshire J. over a period of 43 days. The relationship between the parties before, during and after the trial was characterized by acrimony and disagreement about almost everything.
Factual Background
[2] It is unnecessary to repeat the detailed review of the facts set out by the trial judge. What follows is a factual summary sufficient for an understanding of the issues involved in these appeals.
[3] John Susin, a small contractor in the heavy construction industry, persuaded Pasquale D’Amore of Precision Builders (Windsor) Limited (“Precision”) to submit a tender for the construction of the Belle River marina. The Precision tender was accepted. Although there is some dispute about the arrangement, the job was to be headed by Precision with Susin serving as the full-time contract supervisor at a salary of $1,000 per week plus $200 per week for expenses. D’Amore was to receive the same salary as Susin and profits and losses were to be shared equally. Susin had very limited experience in a project of this nature.
[4] The job involved building stone breakwalls that would form a basin for pleasure boats. The bottom of the basin was to be dredged to an appropriate depth to accom-modate the boats.
[5] Goodreau Excavating Ltd. (“Goodreau”) entered into a contract with Precision to do the dredging at $3.75 per cubic metre. The dredging work was to be completed by February 15, 1984, weather permitting.
[6] Goodreau began the dredging job but soon ran into difficulties. One of the major problems was that the stone breakwalls from which Goodreau intended to do its dredging work were still being constructed, with trucks coming and going to make deliveries. In the result, the dredging work was seriously delayed.
[7] Susin proposed to Goodreau that he would solve the problem by bringing in a large Lima drag line (excavator) and barge. Unbeknownst to Precision, Goodreau subcontracted part of the dredging work to Susin at a rate of $1.75 per cubic metre. There were a number of problems associated with the Lima drag line and barge. Goodreau quit the job alleging that he had not been paid and that the ongoing stone work was preventing his company from doing its dredging work.
[8] Although D’Amore was displeased with Susin’s taking over the dredging contract as a subcontractor of Goodreau, he told Susin to get on with the dredging when Goodreau left. The dredging was completed in July 1984 – four and a half months late.
[9] Susin conducted his affairs through two corporate entities, John Susin Construction Company Limited and Romano Construction Co. Following the completion of the marina, Susin’s two companies commenced a number of law suits – six in total – against Goodreau, Precision and Fidelity Insurance Company of Canada (“Fidelity”) which was the bonding company for Precision on the project.
[10] Goodreau commenced a construction lien action against Precision, D’Amore and Fidelity. Precision counter-claimed against Goodreau.
[11] There were also personal claims advanced by Susin against Eugene Goodreau and Pasquale D’Amore that were dismissed by the trial judge.
[12] In March of 1986, Sutherland J. of what was then the Supreme Court of Ontario issued an order consolidating all of the actions into two actions whereby the three actions commenced by Romano were consolidated into one action with Romano as the plaintiff and the other parties as the defendants. In the second action, John Susin Construction Company Limited is the plaintiff and the other parties are defendants. The construction lien action of Goodreau was included in the consolidation order. Subsequently, the two actions were reconstituted with John Susin as the plaintiff representing his companies by way of orders to continue. Prior to trial, Fidelity was removed from the litigation. Both actions proceeded together at trial before Brockenshire J.
The Trial
[13] What came before the trial judge was essentially one action, in which all of the claims were tried together.
[14] At the conclusion of the trial, the trial judge delivered judgment which provided inter alia:
(a) the gross claim of Susin against Precision for dredging was fixed at $37,147.50 subject to set-offs to be determined by an accounting reference;
(b) an order that Goodreau pay Susin $487.50 for the rental of a bulldozer and all other claims by Susin against Goodreau were dismissed;
(c) an order that Precision pay Goodreau $20,526 with pre-judgment interest in respect of dredging done by Goodreau;
(d) a declaration that D’Amore personally undertook to pay any judgment against Precision;
(e) an order that Precision pay Goodreau its costs on a party and party basis except that 30 days of the trial shall be assessed on a solicitor-and-client basis;
(f) Precision was granted a Bullock order for recovery from Susin of those costs payable to Goodreau; and
(g) the issue of costs as between Susin and Precision was reserved until after the completion of the accounting reference.
[15] Both Susin and Precision have appealed the judgment of the trial judge, including the costs award. In respect of Susin’s appeals, he has filed two factums. He has also filed a third factum as a respondent in the Precision appeal. I regret to say that I have found Mr. Susin’s factums to be prolix, repetitious and confusing. I do not say this in order to “scold” Mr. Susin, as I appreciate that he is not a lawyer, but merely to indicate that I have found it extremely difficult to ascertain exactly what it is that Mr. Susin is attempting to submit on a number of points. Mr. Susin has a tendency to refer to portions of the evidence in no particular order. The result is confusion. I have read and reread Mr. Susin’s submissions. Unfortunately, the rereading has not been any more enlightening. What does emerge is that Mr. Susin is really asking this court to retry this case, which of course we cannot do. He seeks to have this court reverse findings of fact and findings of credibility by the trial judge. He fails to meet the test of palpable and overriding error articulated in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 (S.C.C.).
Susin’s Appeal Against Goodreau
[16] Susin seeks the following relief in his appeal against Goodreau:
(i) an order requiring Goodreau to pay him for the rental of Susin’s barge at the rate of $100 per hour;
(ii) judgment against Goodreau for payment for dredging work done by Susin; and
(iii) an order setting aside the trial judge’s order for costs in the amount of $5,564.57 in respect of the dismissal of a motion to re-open the trial to admit fresh evidence.
[17] The trial judge concluded after a thorough review of the evidence that there was no agreement between Goodreau and Susin for the rental of the barge:
I find that not only did Gene Goodreau never agree to pay $100 per hour to rent the barge Seneca, at no time until long after the fact did Susin ever suggest that rent should be paid, or that $100 was the appropriate hourly rate. There was simply no contract whatever between the parties.
I see no basis upon which to interfere with this finding.
[18] The trial judge found that Susin’s claim for dredging work against Goodreau was limited to a claim for three days work before Goodreau left the scene. The trial judge dismissed the claim on the basis that D’Amore conceded that Precision was prepared to pay for the dredging work done with Susin’s equipment. Precision denies that there was any such concession. However, as discussed in respect of the appeal by Precision, I would not interfere with the trial judge’s conclusion on this issue.
[19] The trial judge dismissed the motion by Susin to re-open the trial to admit fresh evidence. The motion was in fact advanced on two occasions long after the trial had ended and reasons for judgment had been released. The trial judge concluded, inter alia, that the proposed evidence (a letter) was of marginal relevance on a collateral issue. Susin clearly failed to satisfy the test for re-opening the trial and admitting fresh evidence. In my view, it was appropriate that Susin should bear the costs of that motion and I would not interfere with the exercise of the trial judge’s discretion in that regard. The costs award of $5,564.57 including disbursements and GST is perfectly reasonable.
Susin’s Appeal Against Precision
[20] Susin seeks the following relief in his appeal against Precision:
(i) an order increasing his gross claim for dredging from $37,147.50 to $94,122;
(ii) judgment for $9,462 for remedial rock work;
(iii) judgment in the amount of $178,234.04 less the amounts in items (i) and (ii) above; and
(iv) an order setting aside the Bullock order.
[21] Although Susin states that his appeal is limited to the above items, it is difficult to discern any such limitation in his factum. However, I will limit my consideration to those items.
[22] Susin sought to be reimbursed for his dredging work on the basis of charging rent for his Lima drag line and barge at the rate of $249.88 per hour. Susin refers to evidence before the trial judge concerning the fairness of this rental rate. However, the trial judge made a clear finding that there was no agreement between Susin and Precision in respect of the payment of rent for Susin’s dredging equipment.
[23] The trial judge concluded that the appropriate rate of pay for Susin’s dredging work was at the rate of $3.75 per cubic metre of material dredged as provided for in the Precision contract with Goodreau. The trial judge reasoned as follows:
By the time Goodreau Ltd. had left, and D’Amore asked Susin to finish the contract, D’Amore was well aware of Susin’s sub-contract with Goodreau. He did not tell Susin that he would take over Goodreau’s contract with Susin. He told Susin to finish the dredging, now that Goodreau was gone. The fair interpretation of this is that Susin was being asked to stand in the shoes of Goodreau Ltd. and finish its contract. Although no price was agreed, the work was eventually done and I find the fair and proper quantum meruit price for that work is the $3.75 per cubic metre of material delivered to the containment area that was the unit price in the Goodreau Ltd. contract.
I agree with the trial judge’s conclusion.
[24] On this appeal, Susin takes issue with the finding of the trial judge in respect of the quantity of material he dredged. The trial judge found that Susin had dredged 9,906 cubic metres of material. The trial judge accepted the evidence of the project engineer who testified that Susin’s own figures could not be relied upon. The trial judge was entitled to accept the project engineer’s evidence.
[25] Susin at trial claimed $2,500 for remedial rock work. On this appeal, he seeks an order for $9,462 for remedial rock work. The trial judge found that Susin was required to replace rocks which he had simply dumped into the lake. The trial judge concluded that he was not entitled to charge for correcting a problem he had created. The trial judge also noted that Susin had completely failed to quantify this part of his claim. I see no merit in this part of Susin’s appeal.
[26] Finally, I turn to Susin’s claim for $178,234.04 less the amounts of $94,122 and $9,462. Susin’s factum is of no help on this issue. I also note that he made no oral submissions in respect of it. His Supplementary Notice of Appeal No. 3 refers to an alleged admission by D’Amore that Precision owed Susin $138,234.04 plus an additional $40,000. In his factum, Susin alleges he is entitled to the sum of $138,234.04 as part of monies received by Precision from Public Works Canada. He relies on a letter that D’Amore sent to Public Works Canada on April 12, 1985 in which D’Amore makes some reference to a possible resolution of all the outstanding claims involving Precision and Susin. However, there is no specific reference in the letter to either $138,234.04 or an additional $40,000. In my view, the trial judge has properly dealt with Susin’s claims against Precision. I am not persuaded that Susin is entitled to anything further.
Precision’s Appeals
[27] Precision appeals the trial judgment in respect of its liability for the claims of Susin and Goodreau. Like Susin, although perhaps not to the same extent, Precision, in my view, seeks to retry this case.
Precision’s Appeal Against Susin
[28] In respect of the payment for the dredging work done by Susin, Precision’s position, simply stated, is that Goodreau was under contract to perform the dredging work and that Precision has no responsibility to Susin. The arrangement between Susin and Goodreau was for Goodreau to pay Susin $1.75 per cubic metre of material dredged.
[29] Precision also asserts that there is no evidence to support the trial judge’s finding that Precision conceded that it was prepared to pay Susin for his dredging work. Goodreau argues that Precision was aware of the work being done by Susin and acquiesced in his performing it.
[30] Whether there was a concession by Precision to pay Susin or whether there was acquiescence by Precision in permitting Susin to do the dredging work is of little moment. At the end of the day, the dredging work required for the project was done by Goodreau and Susin. If Goodreau had performed it all, it would have been entitled to full payment at $3.75 per cubic metre. Indeed, this is recognized in Precision’s factum (see paragraph 79). I see no error in the trial judge’s conclusion that Susin should be paid for his share of the work. While there was an argument that Susin is only entitled to $1.75 per cubic metre of material dredged before Goodreau left the job, as I have already said, I am not persuaded that the trial judge erred in applying the $3.75 rate. In any event, Precision is paying no more than the original contract called for.
[31] It is not clear whether Precision also seeks to set aside the order for an accounting reference (see Part V of Precision’s factum). However, I will assume that Precision has put the accounting reference in issue in this appeal. It is suggested that the sorry state of the records for the marina project is such that an accounting would be impossible. It is submitted that the responsibility for this lies with Susin. It is further submitted by Precision that Susin’s conduct throughout the life of the contract was tantamount to repudiation of the contract. Precision also alleged breaches of fiduciary duty on the part of Susin. The result of this is that Susin, in the submission of Precision, is disentitled to an accounting and to the benefit of the contract, which provided that the profits from the project are to be shared equally.
[32] The trial judge lived with this case for 43 days of trial. He carefully reviewed all of the evidence that Precision submits disentitles Susin to an accounting and concluded:
I find that D’Amore on behalf of Precision acquiesced to the activities of Susin, that Susin acted on that acquiescence to his detriment by continuing to work on the project, and that D’Amore and Precision cannot now go back to those breaches and claim that the contract had come to an end so that there is no entitlement to a division of profit. I find that Susin is entitled to an accounting as asked.
I see no basis for interfering with the trial judge’s exercise of discretion to order an accounting reference.
Precision’s Appeal Against Goodreau
[33] In Precision’s appeal against Goodreau, it alleges a number of acts on the part of Goodreau which disentitle it to any further payment for its dredging work. These acts include inter alia its delay in performing the work, its failure to work nights and weekends to get the job done, its entering into the agreement with Susin and its abandoning the contract.
[34] Precision takes issue with the following conclusions of the trial judge:
Goodreau had testified to repeatedly complaining about access problems to Susin and to D’Amore. The inspector on the job was aware of these complaints, but did not make specific notes of them, as they related to problems between the contractors rather than problems with the job. The essence of Goodreau’s complaint was that he had taken this job at a low price as a winter fill-in for his men, expecting it would be done quickly. Instead he found he was paying his operators to sit and watch stone trucks go by instead of moving material themselves. As time went by, the chance of breaking even on the job was evaporating. In these circumstances, I find that the directive by Susin that the stone trucks would have priority, and that Goodreau’s forces could not use the breakwalls, was a fundamental breach of the basic understanding between the parties, and frustrated the contract. I therefore find that Goodreau Ltd. was justified in abandoning the job and asking to be paid to date.
[35] In oral argument, counsel for Precision submitted that there could not have been frustration of the contract because the dredging work was ultimately completed by Susin, who was Goodreau’s agent.
[36] Whether or not the trial judge was correct in his conclusions regarding fundamental breach and frustration (I am not prepared to say that he was incorrect), he does conclude that Goodreau is entitled to be paid for the dredging work it performed at the rates agreed to in the contract between Precision and Goodreau. I see no error in that conclusion.
[37] At trial, Precision sought to recover $19,942.08 from Goodreau. This amount represents wages paid at union rates to three operators of Goodreau who were placed on Precision’s payroll. This was done in order to buy peace with Precision’s union as Goodreau was a non-union employer. The trial judge dealt with this issue as follows:
The evidence of both Goodreau and D’Amore was that the union did threaten to take steps, but accepted as a settlement proposal an arrangement whereby the Goodreau Ltd. equipment operators would be put on the Precision payroll and paid union rates and benefits for the duration of the job. This indeed was done. It was further agreed that Precision would charge back the wage costs of these men to Goodreau Ltd. What was not agreed was at what rate this charge back would be made. In the end, the total wage cost of these operators at union rates and benefits was $19,942. The evi-dence of Goodreau Ltd. was that at its rates and benefits the costs would have been $10,899. D’Amore’s position was that this was an accommodation, without which Goodreau ltd. could not work on the job, and Goodreau Ltd. should pay the full cost. Goodreau’s position was that he had taken this job as a winter fill-in job to keep his men busy, and because of that he had a very small anticipated profit. When the potential union problem was raised, his answer was that he would simply pull out of the job. However, he said, D’Amore was in the position of being overdue on starting the dredging, with no alternative easily and quickly available, and therefore D’Amore agreed, in order to get the job started, to put these men on his payroll and to back charge only the amount that Goodreau Ltd. would have paid them if they had stayed on the latter’s payroll.
I accept Mr. Goodreau’s explanation as being the most logical and credible in these particular and peculiar circumstances. I allow as a set off the amount of $10,899 on account of wages paid by Precision to employees of Goodreau Ltd.
On this appeal, Precision seeks to be reimbursed for the full amount of $19,942.08. I find no error in the conclusion of the trial judge in respect of this matter.
The Costs Appeals by Susin and Precision
[38] Both Susin and Precision appeal the costs order of the trial judge.
[39] At trial, Goodreau sought its costs throughout on a solicitor-and-client basis. Goodreau submitted to the trial judge that it was entitled to solicitor-and-client costs because from before the time of commencement of the action, Goodreau wanted no more than payment for the dredging work done to the date it had abandoned the contract. Goodreau achieved exactly what it sought. However, there was no offer to settle pursuant to rule 49 of the Rules of Civil Procedure.
[40] Susin succeeded against Goodreau only to the extent of $487.50 for the rental of a bulldozer, which sum Goodreau admitted was due.
[41] The trial judge found that Goodreau was locked into the series of actions which were commenced by Susin. He accepted the submission of counsel for Goodreau that his client could not get out of this complex web of litigation. The trial judge concluded that, “[t]he various actions were interrelated, Goodreau Excavating was in, in some manner and means, all of the various claims”.
[42] The trial judge found that a good part of the trial was taken up with the issues between Susin and Precision. In the view of the trial judge, counsel for Goodreau would not have been required for 30 of the 43 days of trial if there had been a clear litigation plan articulated by Susin. However, that was not possible due to the conduct of the trial by Susin, who acted on his own behalf. In this respect, the trial judge said:
It appears to me that a good reason for this complicated litigation has been the series of actions which were commenced by Susin, which brought the inevitable responses, which led to the creation of a web of litigation. I am satisfied that the source of this long, drawn out, and complex litigation is the claims that were made by Mr. Susin, and I am satisfied that if it was left to D’Amore and Goodreau to work out their differences between themselves, despite Mr. D’Amore’s great irritation with Mr. Goodreau relating to the bonding company, there would not have been a lengthy trial. There probably would not have been any trial.
[43] In spite of the above conclusion that the cause of the problems related to this protracted trial was the conduct of Susin, the trial judge ordered Precision to pay Goodreau’s costs on a party and party basis for the entire action, with 30 of the trial days to carry entitlement to costs on a solicitor-and-client basis. The rationale for Precision to pay these costs is that the claims made by Goodreau were against Precision and therefore the costs award should be against Precision.
[44] After deciding that Precision should bear this punitive costs award, the trial judge concluded:
As I attribute this litigation to Mr. Susin, I feel it is a proper case in which to make a Bullock order in which Precision would be entitled to recover back over against Susin for the costs that it is obligated to pay to Goodreau Excavating.
[45] I do not understand why a punitive costs order was made against Precision when there is no finding of conduct on the part of Precision or D’Amore which would attract solicitor-and-client costs. In Hunt v. T.D. Securities Inc. (2003), 66 O.R. (3d) 481 (C.A.) at para. 121, Gillese J.A. referred to the much-cited authority of Apotex Inc. v. Egis Pharmaceuticals and Novopharm Ltd. (1991), 4 O.R. (3d) 321 (Ont. Ct. Gen. Div.) at p. 325:
Furthermore, while the award of costs between parties on the solicitor and client scale has traditionally been reserved for cases where the court wishes to show its disapproval of conduct that is oppressive or contumelious, there is also a factor that frequently underlies the award, that is not necessarily expressed, that the successful party ought not to be put to any expense for costs in the circumstances. That is a factor in my decision in this case.
[46] Gillese J.A. in Hunt at para. 123 cited two other authorities of this court in respect of the test for awarding solicitor-and-client costs:
The test for awarding costs on a solicitor and client scale is well established. It was articulated by this court in Mortimer v. Cameron (1994), 17 O.R. (3d) 1, 111 D.L.R. (4th) 428 (C.A.), and more recently in McBride Metal Fabricating Corp. v. H & W Sales Co. Inc. (2002), 59 O.R. (3d) 97 (C.A.). Both cases refer to the following passage from Orkin, The Law of Costs, 2nd ed. (Aurora: Canada Law Book, 1993), at pp. 2-91 to 2-92:
Costs on the solicitor-and-client scale should not be awarded unless special grounds exist to justify a departure from the usual scale.
Such orders are not to be made by way of damages, or on the view that the award of damages should reach the plaintiff intact, and are inappropriate where there has been no wrongdoing.
An award of costs on the solicitor-and-client scale, it has been said, is ordered only in rare and exceptional cases to mark the court’s disapproval of the conduct of the party in the litigation. The principle guiding the decision to award solicitor-and-client costs has been enun-ciated thus:
[S]olicitor-and-client costs should not be awarded unless there is some form of reprehensible conduct, either in the circumstances giving rise to the cause of action, or in the proceedings, which makes such costs desirable as a form of chastisement.
[emphasis in original]
[47] In my view, the test for solicitor-and-client costs against Precision is not met in this case.
[48] While the trial judge seeks to insulate Precision from a costs award by way of a Bullock order against Susin, such an order does not guarantee that Precision will not be required to pay. If Susin is without assets, the Bullock order is no more than cold comfort to Precision. In this respect, I note that the trial judge observed that Susin advised the court that his finances are very limited.
[49] There is also an issue as to whether the trial judge had authority to make a Bullock order. It is useful to briefly review the basis upon which Bullock orders are usually made. The Bullock order has its origin in Bullock v. London General Omnibus Co., [1907] 1 K.B. 264 (C.A.). Bullock was a negligence action arising out of a motor vehicle accident in which the plaintiff sued the owners of two vehicles who she alleged caused her injuries by their joint negligence or, alternatively, by the separate negligence of each of them. Each defendant alleged that the damages were caused by the other defendant.
[50] In Bullock, the jury returned a verdict for the plaintiff against London General Omnibus and against the plaintiff in favour of the other defendant. The trial judge ordered London General Omnibus to pay the plaintiff’s costs and the plaintiff to pay the costs of the other defendant. The trial judge then ordered that the costs that the plaintiff was to pay the other defendant should be added to the costs recoverable by her from London General Omnibus. The trial judge exercised his discretion on the basis that in the circumstances of that case and, in particular, the defence advanced by London General Omnibus, that it was reasonable for the plaintiff to add the other defendant.
[51] On appeal to the Court of Appeal, the court held that the trial judge had jurisdiction to make such an order under the Supreme Court of Judicature Act, 1890 s. 5. I need not set out the language of s. 5, however, it is similar to s. 131(1) of the current Courts of Justice Act, R.S.O. 1990, c. C.43.
[52] Ontario courts have followed Bullock. The weight of authority suggests that Bullock orders are only made in favour of a plaintiff against an unsuccessful defendant to permit the plaintiff to be reimbursed for the costs he or she has been ordered to pay to a successful defendant. In Rooney (Litigation Guardian of) v. Graham (2001), 53 O.R. (3d) 685 (C.A.), Carthy J.A. said at paras. 6 to 8:
[6] A Bullock order directs an unsuccessful defendant to reimburse the plaintiff for the recovered costs of a successful defendant. A Sanderson order directs that the payment go directly to the successful defendant. The rationale behind both orders is the same. Where the allocation of respon-sibility is uncertain, usually because of interwoven facts, it is often reasonable to proceed through trial against more than one defendant. In these cases, a Bullock or Sanderson order provides a plaintiff with an appropriate form of relief.
[7] A Bullock or Sanderson order has been said to be inappropriate when an independent cause of action is alleged against each defendant, for example, when one is based in contract and the other in tort, or when separate actions have been instituted against each defendant. See Scarboro Golf & Country Club Ltd. v. Scarborough (City)(no. 2) (1986), 57 O.R. (2d) 202, 32 D.L.R. (4th) 732 (H.C.J.), and Dellelce Construction and Equipment v. Portec Inc. (1990), 73 O.R. (2d) at p. 442, 44 C.P.C. (2d) 165 (H.C.J.).
[8] In my view, these authorities do not provide a blanket rule that a Bullock or Sanderson order can never be made when the causes of action are independent, or when separate actions are instituted. Although such circumstances may indicate the appropriateness of these orders, and will at times be determinative, each case must be assessed on its own facts. The proper approach to issuing a Bullock or Sanderson order will consider each case in its context. Thus, there may be times where the causes of action are independent or the actions separate, but it is nevertheless fair that the responsible defendant be called upon to pay for the inclusion of others in the trial proceedings.
[53] In my view, the trial judge in this case erred in issuing a Bullock order. Precision was not a plaintiff in this case.
[54] Quite apart from whether this case fits within the Bullock analysis, it seems to me grossly unfair to saddle Precision with a punitive costs award which was intended for Susin. I also note that the effect of the trial judge’s order against Precision appears to be that Precision is fixed with the costs of the unsuccessful claims brought by Susin against Goodreau. These costs should be borne entirely by Susin.
[55] In my view, if the trial judge wanted to make Susin directly responsible for the costs payable to Goodreau for this unnecessarily protracted trial, then he could have done so. The trial judge was invited to make a Sanderson order[^1] against Susin but declined to do so:
I have considered the request that has been made by Mr. D’Amore and Precision Builders to make a Sanderson order against Mr. Susin and his companies for the costs awarded to Goodreau Excavating. I am not prepared to do so for a couple of reasons. One is that the claim of Goodreau Excavating is against Precision Builders. The judgment would be against Precision, and the costs award should be against Precision. Another very practical reason is that Mr. D’Amore has, during the trial, undertaken to guarantee payment by Precision, and it appears he is able to carry out that guarantee.
[56] It is not clear whether Precision’s request for a Sanderson order against Susin was limited to the costs payable by Precision to Goodreau in respect of Goodreau’s successful claim for its dredging work. If that is the case, then I believe the trial judge was correct in declining to make a Sanderson order. However, I am satisfied that the trial judge could have made an order against Susin for his part in creating this protracted trial. All of the actions in this matter were consolidated and, given the complexity of the litigation and the fact that all the parties were locked into its web, it seems to me that the appropriate costs order should have been made against Susin directly, whether or not the case fits squarely within either a Bullock or Sanderson analysis.
[57] I would give leave to appeal the costs order made against Precision and Susin. I would vary that order as follows:
(iv) Goodreau shall have its costs payable by Precision on a partial indemnity scale for the prosecution of Goodreau’s claim against Precision throughout but limited to 6 days of trial;
(v) Goodreau shall have its costs payable by Susin on a partial indemnity scale for the defence of the claims prosecuted against it by Susin throughout but limited to 6 days of trial;
(vi) Goodreau shall have its costs on a partial indemnity scale payable by Susin for an additional 30 trial days; and
(vii) the above costs awards shall be referred to an assessment officer for determination of quan-tum.
[58] As indicated above, the order I would make against Susin is on a partial indemnity scale. While the trial judge concluded that the responsibility for this protracted trial lies with Susin, he made no finding of reprehensible conduct on the part of Susin. He simply said that he failed to develop a clear litigation plan and that by commencing a series of actions, he was responsible for the creation of the “web of litigation”. While I can understand the frustration that must have been generated by this trial and its unnecessary complexity, something more is required to fix Susin with solicitor-and-client costs. In my view, the test for solicitor-and-client costs against Susin was not met.
Disposition
[59] For the above reasons, I would dismiss the appeals of Susin and Precision on the merits. I would grant leave to appeal the costs awards against Precision and Susin and vary the awards as indicated in paragraph 57 above.
Costs of the Appeals
[60] Success is divided on these appeals. Both Susin and Precision were unsuccessful in respect of their appeals on the merits against Goodreau. Both Susin and Precision were unsuccessful in their appeals against each other. In respect of the costs appeals, both Susin and Precision have enjoyed substantial success that has resulted in significant reductions in the amount of costs that each will ultimately be liable to pay.
[61] Goodreau filed bills of costs for these appeals in which it claims a total of $42,477.20 against Susin and $43,162.00 against Precision.
[62] In my view, the divided success in this case calls for relatively modest costs awards in favour of Goodreau which take into account the success enjoyed by Susin and Precision on their costs appeals.
[63] In all these circumstances, I would award costs on a partial indemnity scale to Goodreau payable by Susin in the amount of $15,000, including disbursements and Goods and Services Tax. I would award costs on a partial indemnity scale to Goodreau payable by Precision in the amount of $15,000, including disbursements and Goods and Services Tax.
RELEASED:
“NOV 16 2005” “Robert P. Armstrong J.A.”
“EAC” “I agree E.A. Cronk J.A.”
“I agree E.E. Gillese J.A.”
[^1]: A Sanderson order takes its name from Sanderson v. Blyth Theatre Co., [1903] 2 K.B. 533 (C.A.).