Bellsam Contracting Limited v. 2567714 Ontario Inc. et al, 2025 ONSC 3055

Divisional Court File No.: 069/23 Date: 2025-05-22

Superior Court of Justice – Ontario Divisional Court

Re: Bellsam Contracting Limited, Appellant/Responding Party And: 2567714 Ontario Inc. et al, Respondents/Moving Parties

Before: Justice O’Brien

Counsel: Michael Simaan, Counsel for the Appellant/Responding Party Connor Campbell, Counsel for the Respondents/Moving Parties, 2567714 Ontario Inc., Cory Torgerson and Nadine Torgerson

Heard: Orally on June 9, 2023

Endorsement

[1] The moving party Respondents on the appeal seek an order for costs of their motion to quash the appeal. The moving party sought to quash the appeal on the basis that this court lacked jurisdiction. The Appellant purported to appeal from the Reasons for Decision of Associate Justice Robinson on the trial of an issue that arose from a reference under the Construction Lien Act. The moving parties’ position was that s. 71 of the CLA does not grant jurisdiction to this court other than from a judgment or an order on a motion to oppose the confirmation of a report. It stated that the Associate Judge’s reasons were neither of these.

[2] The Appellant filed a Notice of Abandonment of the Appeal, but only after the moving parties had filed their material on the motion including a brief factum.

[3] The moving party seek costs of $15,000 on a substantial indemnity basis. It submits that substantial indemnity costs are appropriate since counsel e-mailed the Appellant prior to bringing the motion to alert the Appellant to the jurisdictional problem. Therefore, in its submission, the motion was unnecessary. It also offered to settle the motion on a no costs basis if the Appellant discontinued the appeal within 7 days from the offer.

[4] The Appellant/responding party on the motion submits that the e-mails from the Appellant did not clearly articulate why the appeal was in the wrong jurisdiction. In its submission, counsel for the moving party wrote the e-mails in an intentionally misleading manner.

[5] I have reviewed the e-mails and disagree with the responding party’s position. The e-mails were not misleading and it is an improper stretch to suggest as much. Once those e-mails were sent, it was incumbent on the responding party to look more closely at the issue of jurisdiction, or risk the costs of a motion.

[6] The moving party relies on Chartrand v. HOOPP, 2021 ONSC 5840 in support of its submission that $15,000 is a reasonable award for costs in the circumstances. In Chartrand, this court awarded costs of $10,000 on a motion to quash an appeal. That was a somewhat more complex motion involving the analysis of the availability of remedies under the Judicial Review Procedure Act. It was not an issue of jurisdiction expressly set out in the statute. Here, the issue was sufficiently straightforward that the moving party’s factum was less than ten pages. Further, in Chartrand, the motion was argued whereas in this case the Appellant abandoned the appeal, making the motion unnecessary, albeit after the moving party filed the motion materials.

[7] Overall, taking into account the fact that the motion here was not argued, but also taking into account the moving party’s e-mails and Offer to Settle, I find costs of $7,500 to be appropriate. Therefore, the responding party shall pay the moving party costs of $7,500 within 30 days.

O’Brien J.

Originally Released via e-mail on June 9, 2023 Released: May 22, 2025