SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: C-858-06; C-1016-06
DATE: 2012-05-07

IN THE MATTER OF THE CONSTRUCTION LIEN ACT , R.S.O. 1990, C.30 and the amendments thereto

RE: 2016637 Ontario Inc o/a Balkan Construction, Plaintiff Court File: C-858-06

AND:

Catan Canada Inc., Defendant

RE: APA Holdings Inc o/a Filmar Custom Homes, Plaintiff Court File: C-1016-06

AND:

Antonio Duscio aka Tony Duscio and Leanne Duscio, Defendants

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

COUNSEL:
Stephen T. Brogden, for the Plaintiffs/Responding Parties

Douglas E. Snider, for the Defendants/Moving Parties

costs ENDORSEMENT

[ 1 ] In the endorsement released April 3, 2012, I directed that the parties may make written submissions with respect to costs and the parties have now done so.

[ 2 ] Counsel for the Plaintiffs in the two actions seeks partial indemnity costs of the motions for security for costs (excluding any costs for the portion of the motions dealing with undertakings) in the aggregate amount of $12,583.13, being $5,145.45 in the APA action, and $7,437.68 in the Balkan action, and seeks payment within 30 days.

[ 3 ] Counsel for the Defendants/Moving Parties, submits that the costs should not exceed $5,000.00 in the aggregate and should be payable to the Plaintiffs in the cause, or alternatively should be held in abeyance and be payable only after disposition of the undertakings aspect of the motion.

[ 4 ] I see no reason why the usual practice of costs following the event should not be followed in this case. The security for costs motion was argued as a discrete matter, and the costs related to it need not be tied to the undertakings aspect of the motions. The costs of that aspect may be dealt with when it is disposed of.

[ 5 ] In the exercise of its discretion under Rule 57.01, the Court is to balance the principle of indemnity with the principle that the amount of costs should reflect the amount that an unsuccessful party should reasonably expect to pay. In balancing these principles, I find that time for counsels’ preparation for the motions, which took ½ day to argue, to be on the high side, for the purposes of fixing partial indemnity costs.

[ 6 ] It is ordered that the Defendants in the Balkan Construction action shall pay to the Plaintiff in that action partial indemnity costs in the sum of $ $5,000.00 and the Defendants in the Apa Holdings action shall pay to the Plaintiff in that action partial indemnity costs in the sum of $3,500.00. Both these amounts are inclusive of disbursements and HST and exclude any costs related to the undertakings aspect of the motions. The said costs shall be paid within 30 days hereof.

D. A. Broad J.

Date: May 7, 2012