SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: C-1079A-09
DATE: 2012-05-07

RE: Moorefield Excavating Ltd., Plaintiff/Respondent

AND:

The Corporation of the Municipality of Arran-Elderslie, Defendant

AND:

Genivar Consultants LP, Third Party/Moving Party

BEFORE: The Honourable Mr. Justice D. A. Broad

COUNSEL:
M. A. Van Bodegom, for the Plaintiff/Respondent

Ross C. McLean, for the Defendant

M. Gosia Bawolska, for the Third Party/Moving Party

Costs ENDORSEMENT

[ 1 ] In my Reasons released March 15, 2012, I directed that counsel may make written submissions with respect to costs, Moorefield’s submissions to be made within 21 days, and Genivar’s within 35 days, of that date. Counsel for Moorefield has made written submissions on costs, however, no submissions have been received on behalf of Genivar.

[ 2 ] Counsel for Moorefield seeks substantial indemnity costs in the sum of $19,592.25, relying on subrule 20.06, arguing that Genivar’s bringing of the summary judgment motion was “unreasonable.”

[ 3 ] Rule 20.06(a) provides that the court may fix and order payment of the costs of a motion for summary judgment on a substantial indemnity basis if the party acted unreasonably by making or responding to the motion.

[ 4 ] It is noted that the current wording of the Rule does not contain the presumed liability for substantial indemnity costs of a moving party that existed under the pre-2010 Rule.

[ 5 ] Counsel for Moorefield has not provided any case authority on the test for determining unreasonableness for the purposes of the newly formulated Rule.

[ 6 ] On balance, notwithstanding the absence of any submissions on costs from Genivar, I would not characterize its actions in bringing the motion as “unreasonable” in order to engage Rule 20.06. With respect to Mr. Van Bodegom’s submissions, I would not go so far as to state that Genivar’s motion had no prospect of success and therefore constituted an unwarranted use of the summary judgment provisions.

[ 7 ] It is therefore ordered that the Third Party Genivar pay costs on a partial indemnity basis to the Plaintiff Moorefield, fixed in the sum of $ 13,432.74, inclusive of disbursements and HST, such payment to be made within 30 days hereof.

[ 8 ] A matter was raised by counsel for Moorefield with respect to Genivar’s request for leave to deliver a Statement of Defence to the main action. If necessary, the Third Party Genivar is given leave accordingly.

D. A. Broad J.

Date: May 7, 2012