Citation: 1995636 Ontario Inc. C.O.B. 2B Developments v. 5010729 Ontario Inc. C.O.B. as Astute Capital Corp., 2025 ONSC 372
DIVISIONAL COURT FILE NO.: DC-24-2893
DATE: 2025/01/16
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
IN THE MATTER OF THE CONSTRUCTION ACT, R.S.O. 1990, c. C. 30
BETWEEN:
1995636 ONTARIO INC. C.O.B. 2B DEVELOPMENTS Appellant / Moving Party
– and –
5010729 ONTARIO INC. C.O.B. as ASTUTE CAPITAL CORP. Respondent / Responding Party
COUNSEL:
Marco Falco and Jonathan Goode, for the Appellant / Moving Party Martin Black, for the Respondent / Responding Party
HEARD: In writing
Costs Endorsement
DOYLE, J.
Overview
[1] On December 12, 2024, the court granted the Moving Party, 1995636 Ontario Inc. C.O.B. 2B Developments’ (“2B”) motion for an order staying the Final Order of Justice McLean (“Final Order”) who dismissed 2B’s action, discharged 2B’s lien and awarded damages to 5010729 Ontario Inc. C.O.B. as Astute Capital Group (“Astute”) the amount of $325,375 plus costs in the amount of $112,663.40.
[2] 2B’s appeal of the Final Order automatically stayed the damages of the Final Order but 2B required an order to stay the discharge of the lien pursuant to rule 63.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, deletion of the lien from title and vacating 2B’s certificate of action registered against the property.
[3] If the parties were not able to agree on the issue of costs, they were to provide written costs submissions.
[4] After reviewing the parties’ respective submissions, and the Rules of Civil Procedure, the court orders costs in the favour of 2B in the amount of $9,000 which is stayed pending the determination of the appeal.
2B position
[5] 2B is requesting costs in the amount of $20,000 as it was the successful party and is presumptively entitled to costs. The first prong as explained in RJR-MacDonald Inc v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311 is whether the appeal raises a serious question to be tried was not seriously contested.
[6] Although the stay motion was not complicated, Astute resulted in further legal costs as it was clear that the remaining two prongs of RJR-MacDonald v. Canada were satisfied, that is: whether the moving party would suffer irreparable harm if the stay were refused; and the balance of convenience, namely which of the parties would suffer greater harm from the granting or refusal of the stay.
[7] Given the importance of the issue, two specialized lawyers were overseeing the case and the participation of one of the lawyers, a specialist in construction matters, was limited to three and a half hours at the motion.
Astute position
[8] Astute submits that in accordance with H.I.R.A. Limited v. Middlesex Standard Condominium Corporation No. 823, 2018 ONSC 3661, costs should be reserved to the panel hearing the full appeal.
[9] In the alternative, the costs should be awarded in the cause of the appeal, or in the further alternative, any costs in favour of 2B should be stayed until the appeal is determined as an unsuccessful appeal will result in 2B owing damages plus $115,000 in costs.
[10] Astute submits that a reasonable costs is this motion is approximately $5,000 as order in Morguard Residential v. Mandel, 2017 ONCA 177, and Sapusak v. 9706151 Canada Ltd, 2024 ONCA 774.
Discussion
[11] Costs are to be determined in accordance with s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C. 43. In determining costs, the court has considered the factors set out in r. 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[12] Pursuant to r. 57.01(7), the court is directed to devise and adopt the simplest, least expensive and most expeditious process for fixing costs.
[13] As stated in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), in determining costs, the court can compare the defendants’ fees to those of the plaintiffs when considering the reasonable expectations criteria. The court must exercise its discretion in awarding costs that are fair and reasonable.
[14] The determination of costs is meant to be a simple and straightforward exercise that does not require the court to complete mathematical formulas.
[15] The court found that a stay was in the interests of justice and that all three prongs in RJR-MacDonald v. Canada were satisfied.
[16] With respect to whether there would be irreparable harm, it was clear if the stay was not granted even if successful at the appeal, the discharge cannot be reinstated.
[17] At this final stage, the court determined 2B would suffer greater harm from the granting or refusal of the stay
[18] First, costs should be fixed at this stage rather than burdening a full panel with the costs of this motion. However, I do agree that the results of the appeal will have a significant impact on how costs will flow between the parties.
[19] The best route is to fix costs in favour of 2B, the successful party in this motion, but order that the payment of costs are stayed until the appeal is determined.
[20] In reviewing the bill of costs filed in Case Center, the court made several comments:
- I note that 2B’s costs on a partial indemnity basis are approximately $29,636 with hourly rates for lead counsel ranging from $300 to $500 per hour.
- This appears very high as this is not a complicated motion. It is a stay the discharge of a lien.
- Astute’s costs on a partial indemnity basis of $9,799 are based on counsel’s hourly rate of $560 with an increase to $600 per hour commencing January 1, 2024.
- I also note that Astute states that it made an effort to agree with costs in advance.
[21] Given the above, the court finds a reasonable and proportional costs and what would be expected be paid by the unsuccessful party is $9,000.
[22] The payment of costs is stayed pending the determination of the appeal.
Justice A. Doyle
Date: January 16, 2025
CITATION: 1995636 Ontario Inc. C.O.B. 2B Developments v. 5010729 Ontario Inc. C.O.B. AS Astute Capital Corp., 2025 ONSC 372
DIVISIONAL COURT FILE NO.: DC-24-2893
DATE: 2025/01/16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN
1995636 ONTARIO INC. C.O.B. 2B DEVELOPMENTS Appellant
– and –
5010729 ONTARIO INC. C.O.B. as ASTUTE CAPITAL CORP. Respondent
COSTS ENDORSEMENT
Doyle J.
Released: January 16, 2025