NEWMARKET COURT FILE NO.: CV-09-097426-0000T

DATE: 20120410

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: COMMANDER CONSTRUCTION, Plaintiff

AND:

THE SOVEREIGN GENERAL INSURANCE COMPANY AND

CONTRAD CONS. (1999) INC., Defendants

BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN

COUNSEL:
P. Di Monte, for the Plaintiff

J. Goode, for the Respondent

HEARD: By written submissions

COSTS ENDORSEMENT

[ 1 ] For written reasons issued February 14, 2012 the plaintiff’s motion for partial summary judgment against The Sovereign General Insurance Company (“Sovereign”) was dismissed. The parties have not resolved costs issues and costs submissions have now been received. Sovereign, the successful party, seeks costs on a partial indemnity basis of $10,509.02.

[ 2 ] The plaintiff opposes an order of costs in favour of Sovereign in connection with its motion for partial summary judgment for a matter that proceeded under the simplified procedure rules. The plaintiff submits that it should be awarded its costs. Alternatively, if costs are awarded against it, costs should be proportional; costs should be what the parties reasonably expected and they should be fair and reasonable in all the circumstances. Finally, the plaintiff submits that costs against it should only be allowed after trial.

[ 3 ] I see no reason why the ordinary costs rule, that costs should be awarded to the successful party, should not be adhered to in this matter. Although the plaintiff submits that costs should be what the parties reasonably expected, the plaintiff did not submit its own bill of costs for comparison purposes.

[ 4 ] The issue of whether or not a summary judgment motion should even be brought in the context of a simplified procedure matter was canvassed by the Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch 2011 ONCA 764. The Court of Appeal cautioned that motions for summary judgment should rarely be brought in such cases and the court should apply the ‘efficiency rationale’ as well as the ‘full appreciation’ test in assessing such motions.

[ 5 ] Proportionality also plays a role here. The amount that the plaintiff sought to achieve under its motion for partial summary judgment was $20,000. The plaintiff could have chosen to proceed by way of a summary trial for all of its claim and avoided the risks and costs associated with its partial motion.

[ 6 ] With the above principles in mind together with the costs principles as set out in Rule 57.01 I am satisfied that a costs award in favour of Sovereign in the amount of $6,000 plus HST is fair and reasonable in the circumstances.

[ 7 ] It is ordered that costs be payable to Sovereign by the plaintiff in the amount of $6,000 plus HST forthwith.

MULLIGAN J.

Date: April 10, 2012