ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 6493/07
DATE: 2012-05-25
B E T W E E N:
1520601 Ontario Inc. Plaintiff
Brian J. Decaire, for the Plaintiff
- and -
Manuel Ferreira, Lucilia Ferreira, Peter Ferreira, The Toronto Dominion Bank, and Canada Mortgage and Housing Corporation
Mark A. Radulescu, for the Defendants
Defendants
A N D B E T W E E N: Manuel Ferreira, Lucilia Ferreira and Peter Ferreira Plaintiffs by Counterclaim
Mark A. Radulescu, for the Plaintiffs by Counterclaim
- and -
1520601 Ontario Inc. Defendant by Counterclaim
Brian J. Decaire, for the Defendant by Counterclaim
The Honourable Justice J. R. Henderson
COSTS DECISION
[ 1 ] The plaintiff corporation (hereinafter called “152”) commenced this Construction Lien Act proceeding for damages arising out of the defendants’ breach of a commercial contract. The defendants claimed a setoff/counterclaim for incomplete or deficient work. This is my decision with respect to the costs of this proceeding.
[ 2 ] The parties agreed that they had entered into a commercial contract whereby the defendants had retained 152 to rehabilitate and renovate the defendants’ 14-unit residential building. After a five day trial, followed by one-half day of submissions, I found that the defendants had terminated the contract without sufficient cause. I found that the full value of the contract, plus extra charges, less the money already paid to 152, left an outstanding balance of approximately $78,000.00. I also found that the cost of completing the work and repairing the deficiencies amounted to approximately $30,000.00. Thus, judgment was awarded to 152 in the net amount of $48,212.83.
[ 3 ] Both 152 and the defendants made written offers to settle, but none of the offers met the criteria that would engage the provisions of Rule 49.10.
[ 4 ] I do not accept the defendants’ argument that there was divided success. 152 commenced this proceeding because 152 alleged that it was owed money by the defendants, and that allegation was proven to be correct at trial. Even though the defendants were successful on some of the matters at issue at the trial, the end result was that 152 obtained a monetary judgment against the defendants.
[ 5 ] For these reasons I find that 152 should be awarded its costs on a partial indemnity scale.
[ 6 ] As to the quantum of costs, I find that the issues before the court were of low to moderate complexity, and the monetary amount at stake was relatively small for a trial in this court. Further, I find that neither party acted in a manner that significantly prolonged the trial.
[ 7 ] I accept that 152’s Bill of Costs represents the actual legal services rendered to 152 by its lawyers. However, the Bill of Costs should be reduced so that the costs payable by the defendants to 152 are proportionate to the amount in issue and the complexity of the proceeding.
[ 8 ] Therefore, I will allow a counsel fee for five and a half days at trial in the total amount of $9,900.00 plus HST. I will also allow a counsel fee for all preparation time including all correspondence, production of documents, discovery, pleadings, pretrial, attendances at court prior to the trial, and all preparation for trial in the total amount of $9,000.00 plus HST. Thus, the total fee allowed will be $21,357.00, inclusive of HST.
[ 9 ] 152 claims disbursements in the total amount of $16,918.27, including $9,738.05 for the fees of an expert James Lischkoff (“Lischkoff”). In my view, Lischkoff’s evidence was of marginal value in this proceeding. Consequently, I will reduce the disbursements for Lischkoff’s fees on a partial indemnity basis to $6,000.00. Therefore, 152’s assessable disbursements will be fixed at $13,180.22, all inclusive.
[ 10 ] In conclusion, it is ordered and adjudged that the defendants will pay to 152 its costs on a partial indemnity basis fixed at the total sum of $34,537.22, payable within 30 days.
Henderson, J.
Released: May 25, 2012
COURT FILE NO.: 6493/07
DATE: 2012-05-25
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: 1520601 Ontario Inc. Plaintiff - and – Manuel Ferreira, Lucilia Ferreira, Peter Ferreira, The Toronto Dominion Bank, and Canada Mortgage and Housing Corporation Defendants A N D B E T W E E N: Manuel Ferreira, Lucilia Ferreira and Peter Ferreira Plaintiffs by Counterclaim - and – 1520601 Ontario Inc. Defendant by Counterclaim COSTS DECISION Henderson, J.
Released: May 25, 2012