COURT FILE NO.: 08-CV-348019
DATE: 20120629
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE STATE GROUP INC.
Joseph R. Young, for the Plaintiff
Christopher J. Sparling for the lien claimant
Greyfield Construction Co. Ltd.
Plaintiff
Joseph Cosentino for the lien claimant Ainsworth Inc.
- and -
QUEBECOR WORLD INC. and 4307046 CANADA INC.
Lawrence Thacker and Sam Laxer, for the Defendant 4307046 Canada Inc.
Defendant
HEARD: June 18, 2012
Master Polika
[1] On May 18, 2012 I delivered my reasons relating to the liability of 4307046 Canada Inc. (“430”) for the claims for lien of the lien claimants in this reference summed up in paragraph 65 as follows:
For the aforesaid reasons I find that 430 is an owner such that the lien claimants who may prove liens are entitled to priority over the interests of 430 in the premises for their liens so proved and in the alternative I find that the lien claimants who may prove liens have priority over the conveyance to 430 and any advances made by 430 in respect of the conveyance for their liens so proved.[^1]
Left for argument was liability for costs of the portion of the reference relating to this determination.
[2] In respect of costs at the pre-trial for directions held on Monday, May 22, 2012 I made the following order:
- Costs of motion relating to “ownership” and priority issue to be addressed as follows:
(a) Any lien claimant claiming costs to deliver a bill of costs, dockets including any contribution towards the costs of the motion and short factum relating to their claim for costs by June 5, 2012;
(b) Owner to respond to lien claimants with a short factum by June 15, 2012;
(c) Argument of costs fixed for 3:00 pm June 18, 2012.i
[3] To address timeliness and quantum of the 22 claims for lien before me a vetting committee was struck earlier. No one objecting on February 28, 2011 I accepted the findings of the vetting committee as to timeliness and quantum. The committee reported four claims for lien were withdrawn leaving 18 to be addressed. After acceptance of the committee’s findings, of the 18 claims for lien, approximately 11 still had timeliness and/or quantum issues to be tried, they being the only issues remaining in the reference after my disposition of the issue of 430’s liability to the lien claimants. On Monday June 18, 2012 at 11:00 a.m. I held another pre-trial for directions at which the trial of the remaining timeliness and quantum issues was fixed, on the terms set out in the endorsement, for 10:00 a.m. August 13, 2013 with 12 days set aside for trial. The pre-trial was followed in the afternoon by argument relating to costs.
[4] In relation to costs filed before me pursuant to paragraph 5 of my endorsement of May 22, 2012 were:
(a) On behalf of the plaintiff a Bill of Costs, Factum and book of Authorities;
(b) On behalf of the lien claimant Greyfield Construction Co. Ltd.: Bill of Costs, Factum and Supplementary Factum and Bill of Costs;
(c) On behalf of the lien claimant Ainsworth Inc.: Bill of Costs, Factum and Book of Authorities;
(d) On behalf of the lien claimant Technique Acoustique (L.R.) Inc. the affidavit of Benoit Bienvenue sworn June 4, 2012; and
(e) On behalf of 430: Cost Submissions, Book of Authorities and Supplementary Cost Submissions.
[5] On June 18, 2012 after the conclusion of argument I reserved my decision on costs of the portion of the reference relating to the liability of 430 to the lien claimants. As the trial on the remaining issues of timeliness and quantum was fixed for a time following my retirement I advised the parties that I would give directions in these reasons respecting an interim report to reflect my findings in the reference to date.
[6] Costs are sought before me as follows:
(a) For services rendered on the motion by plaintiff’s counsel inclusive of disbursements and GST on a substantial indemnity basis of $41,953.51 or on a partial indemnity basis of $35,625.51 on the basis of fees billed of $50,428.51;
(b) For services rendered on the motion by counsel for Black & MacDonald on behalf of all lien claimants inclusive of disbursements and GST on a substantial indemnity basis of $64,300.00 or on a partial indemnity basis of $56,465.00, on the basis of fees billed to client of $73,767.00;
(c) For services rendered on the motion by counsel for the lien claimant Greyfield Construction Co. Ltd. inclusive of disbursements and GST on a substantial indemnity basis of $22,717.99 or on a partial indemnity basis of $20,457.99 the basis of fees and disbursements billed to client of $25,616.44; and
(d) For services rendered on the motion by counsel for the lien claimant Ainsworth Inc. inclusive of GST on a partial indemnity basis $8991.93.
[7] The total claimed for costs of the motion on a partial indemnity basis inclusive of disbursements and GST is $122,157.38. The lien claimants seeking costs also ask that I apportion any costs awarded as between the lien claimants according to their contribution towards the costs of the motion either by payments of monies made to counsel for the lien claimant Black & MacDonald or by costs of their counsel in preparing for and arguing the motion or both.
[8] The parties seeking costs also claimed reimbursement by way of costs of the monies they paid towards services rendered by counsel for Black & MacDonald. The lien claimants claiming costs cannot have it both ways, that is they cannot claim by way of disbursements of monies paid to counsel for Black & MacDonald and for the costs for services rendered by counsel for Black & MacDonald on the motion. The claim for reimbursement is not a proper disbursement and amounts to a duplicative claim for the services rendered by counsel for Black & MacDonald on the motion.
[9] The background to the methodology adopted by me on the reference to deal with liability of 430 is set out in my reasons released on May 18, 2012. However given the position taken by 430 on the argument of costs, namely that what transpired was a motion brought by one lien claimant which was settled and that in effect another motion was brought for the same relief by other lien claimants, that 430’s liability for costs was limited to those incurred after the settlement, I will next address this miss-characterization of what transpired before me.
[10] At the first pre-trial for directions on March 1, 2010 liability of 430 to the lien claimants was raised and addressed by all parties. I concluded that 430’s liability was pivotal and if ruled on early on for eventual incorporation in my report might bring the reference to completion in an expeditious and cost effective manner.
[11] With the agreement of all of the parties, the form I chose to enable liability to be adjudicated on in advance of the determination of the balance of the issues in the reference was that of a notice of motion, setting out the sought after dispositions with the exchange of supporting and opposing affidavits followed by cross-examinations and witness examinations and in turn followed by argument with written facta with the results to be incorporated in my report with my other findings in this reference. Carriage of the motion on behalf of all the lien claimants was given to counsel for the lien claimant Black & MacDonald Limited rather than plaintiff’s counsel with the agreement of all parties as set out in my endorsement of March 1, 2010 as follows:
- In relation to motion to resolve issue as to defendant 4307046 Canada Inc.’s status as an “owner” and related issues thereto:
(a) Motion will be brought by Black & McDonald with notice of motion and supporting material to be served by May 20, 2010;
(b) Defendants’ responding material to be served by June 15, 2010;
(c) Cross-examinations, if any, to be completed by July 30, 2010.
[12] The Notice of Motion was dated May 31, 2010 with the following relief being sought on behalf of all lien claimants:
(a) A declaration that 4307046 Canada Inc. (“430”) is an “owner” within the meaning of the Construction Lien Act (the “Act”);
(b) A declaration that BMcD and any other lien claimants who may prove liens are entitled to priority over the interests of 430 in the premises for their liens so proved (1) under the Act generally to the extent 430 is an “owner”, and in the alternative (2) under s. 78(1) and 78(6) of the Act to the extent 430’s interest in the premises derives from the prior owner by “other agreement”;
(c) In the further alternative, a trial of the above issues if it is determined that there are any material facts in dispute necessary to resolve one or more of those issues;
(d) Such further and other relief as this Honourable Court may permit.
[13] All parties to the reference accepted that they would be bound by my determination as to the liability of 430 to all the lien claimants.
[14] In addition to the defendants at the commencement of the reference, there were 22 lien claimants, all parties to the reference arising in this action, that is, the action commenced by the plaintiff to enforce its claim for lien. By operation of the provisions of the Construction Lien Act, on the reference all the lien claimants became parties to this action and their claims for lien and actions were subsumed for determination in the reference, that is a type of statutory class proceeding. The effect of the provisions of the Construction Lien Act is to ensure all claims against the premises are decided in one proceeding thus avoiding having the court determine the same issues in 22 different actions.
[15] At the ensuing pre-trials for directions further orders were made relating to the motion and other steps in the reference until the pre-trial for directions on October 24, 2011 when argument of the motion was fixed for February 28, 2012 immediately following the pre-trial for directions fixed for that date.
[16] Prior to February 28, 2012 ten lien claimants paid to counsel for Black & MacDonald the sum of $40,600.00 towards the costs expended in bringing on the motion. In addition three lien claimants, the plaintiff, Greyfield Construction Co. Ltd, and Ainsworth Inc. contributed lawyer time to the preparation of the motion by assisting counsel for Black & MacDonald and by attending at cross-examinations.
[17] At the February 28, 2011 pre-trial for directions I was advised that the lien claimant Black & MacDonald Limited and 430 had settled their differences. I noted their advice in my procedure book as follows:
In respect of pending motion Black & MacDonald and 430 settled differences and ask that motion be adjourned as others have contributed to it.
430 and Black & MacDonald by this submission acknowledged that the motion would continue by other of the lien claimants. 430 and Black & MacDonald also by this submission acknowledged that they both knew the motion had been contributed to by other of the lien claimants. 430 and Black & MacDonald were also on notice of the participation of counsel for other of the lien claimants on the motion. Black & MacDonald was privy to the financial and lawyer time contribution of the other lien claimants to the preparation of the motion. 430 was aware of the participation of other lien claimant’s counsel in preparation of the motion as in addition to counsel for Black & MacDonald on cross-examinations held before February 28, 2011 the following other lien claimants’ counsel appeared: Joseph Young for the plaintiff and Christopher J. Sparling for the lien claimant Greyfield Construction Co. Ltd.
[18] The only knowledge disclosed to me of the settlement between 430 and Black & MacDonald Ltd. was that the settlement of all their differences was all inclusive. 430 argued that thus it satisfied its liability for costs of the motion prior to February 28, 2012.
[19] Given the contribution of other lien claimants to preparation of the motion and given that from the first pre-trial carriage was given to bring the motion on behalf of all the lien claimants, both Black & MacDonald and 430 knew that if they settled they could not as between the two of them compromise the position of the other lien claimants in respect of the motion and in respect of the contribution made by the other lien claimants towards the costs of the motion both by way of financial advances for Black & MacDonald’s counsel’s time in preparing the motion and by way of the contribution of their lawyers’ time in preparation of the motion. Their statement made to me on February 28, 2011 acknowledged that to be the case when they submitted and asked “that motion be adjourned as others have contributed to it.”
[20] 430 argues that counsel for Black & MacDonald was not retained by the lien claimants and therefore was not acting on their behalf notwithstanding that it had knowledge of the lien claimants’ contribution towards the motion and my order. The argument is devoid of merit. The issue is not one of retainer but of carriage of the motion on behalf of all the lien claimants ibn the context of a Construction Lien Act reference, a not unusual event in a multiparty lien reference designed to minimize costs.
[21] For the aforesaid reasons I find that 430 when it entered the settlement with Black & MacDonald was aware that the motion was being brought on behalf of all the lien claimants with the contribution and assistance of some of the lien claimants both financial and by way of lawyer time such that any settlement with Black & MacDonald in respect of the motion would not bind the other lien claimants, particularly in respect of any claim for costs arising at the conclusion of the motion including the costs of consul for Black & MacDonald preparing the motion.
[22] On that basis I reject the arguments advanced for 430 that it is not responsible for the costs of the motion prior to February 28, 2012.
[23] In SIPGP No. 1 Inc. v Eastern Construction Co.[^2] at paragraphs 8 to 12 I set out the general principles applicable to costs awarded in a reference under the Construction Lien Act as follows:
The costs to be awarded in the performance bond action, an action brought under the ordinary procedure set out in the Rules of Civil Procedure are governed by section 131(1) of the Courts of Justice Act, which provides, that costs are in the discretion of the court, and that the court may determine by whom and to what extent the costs shall be paid.
Rule 57.01(1) of the Rules of Civil Procedure sets out a non-exhaustive list of factors which the Court may consider in exercising its discretion, in addition to the result in the action and any offer to settle made in writing. Rule 1.04 (1.1) provides that in applying the rules the court shall make orders that are proportionate to the importance and complexity of the issues and the amounts involved.
In a lien action brought pursuant to the provisions of the Construction Lien Act the court’s authority to award costs, is set out, in section 86 of the Construction Lien Act, as being in the court’s discretion, and that a costs order may be made on a substantial indemnity basis subject to the limitation set out in section 86(2). That limitation is, where the least expensive course is not taken by a party, the costs allowed to a party shall not exceed what would have been incurred had the least expensive course been taken.
Section 67(3) of the Act provides that, except where inconsistent with the Act, the Courts of Justice Act and the Rules of Civil Procedure apply to pleadings and proceedings under the Act. Given that the provisions of Rule 57.01(1) are not mandatory, I find that Rule 57.01(1) is not inconsistent with the Construction Lien Act and that the non-mandatory and non-exhaustive conditions set out therein may be considered in fixing costs in a lien action. Rule 1.04(1.1), however, to the extent that it is mandatory, is inconsistent with section 86 of the Construction Lien Act. Because of its mandatory nature, it impinges on the court’s discretion set out in section 86. However, I find proportionality is, nonetheless, a non-binding factor which can be considered by the court in exercising its discretion as to costs, very much akin, although not alike, the limitation set out in section 86(2).
Established principles applicable to fixing costs are, that the court should not engage in a purely mathematical calculation of hours times rate, but rather, the costs award should reflect a fair and reasonable amount, and that in coming to that amount, the court should consider the reasonable expectation of the parties as to costs of the proceeding they are involved in.
[24] I have applied these principles in fixing costs of the motion before me.
[25] On the material before me there is no basis for finding that costs should not follow the result, that is that 430 who opposed the motion not be liable to the lien claimants for costs.
[26] I did not order that 430 deliver a bill of costs rather I left it to 430 to determine what costs submissions it would make. It is without question that a comparison of costs incurred by 430 on the motion with the costs being claimed would bear on the reasonable expectation of the parties as to costs of the motion.[^3] Further, if a losing party fails to file a bill of costs, notwithstanding there is no requirement to do so, it is a factor which “may be taken into account when considering the reasonable expectations of the losing party.”[^4] I have also applied this principle in fixing costs.
[27] Costs were sought by the plaintiff on a substantial indemnity basis. There are two instances when elevated costs are warranted, when a Rule 49.10 offer to settle is in issue, that is, where substantial indemnity costs are explicitly provided for or where the conduct of the losing party warrants sanction.[^5] Neither instance on the facts before me are applicable.
[28] At issue at the commencement of the reference were 22 claims for lien totaling over $5,300,000 arising out of an improvement costing $40,000,000 to $45,000,000 to facilitate the installation of a new press with a value of approximately $100,000,000.
[29] The motion was key and extremely important to all parties for a number of reasons. Firstly, the determination of the issue cut down the amount of time needed at trial where all parties likely would have had to participate. If 430 succeeded it was out of the action without having to participate in a trial addressing the remaining issues.. If it did not then left for determination in the action was the issue of 11 of the 22 lien claimants’ claims for lien on issues restricted to timeliness and/or quantum. Lastly once liability was decided the likelihood of settlement between the parties increased.
[30] The motion was complex both as to the legal issues involved as well as the facts in issue. In particular the lien claimants were faced with the task of establishing what factually had taken place in relation to the lands and premises the subject of the improvement, the facts relating to the improvement and the relationship between the various Quebecor companies involved in the improvement and the use of the lands and premises the subject of the improvement. In its cost submissions 430 acknowledged the complex factual issues involved when it submitted that “this is one of the most complicated ownership inquiries conducted to date in the jurisprudence”.
[31] The parties’ acceptance of the use of a motion to determine the liability issue served to shorten the duration of the reference proceedings. The time expended in preparing the motion and its argument by the lien claimants was appropriate for the matters in issue and did not unnecessarily lengthen the motion or increase its costs. Any duplication of preparation was minimal. The motion only involved counsel for four out of twenty-two lien claimants, the other lien claimants being content that they carry the ball.
[32] 430 used three counsel on the argument of the motion, the lien claimants two. In respect of preparation I have no information as to the number used by 430, 430 choosing not to deliver a bill of costs, whereas the lien claimants used one each except for Black & MacDonald which used three, one senior, one mid-range and one junior. On the material before me I do not find that there were any real duplicative costs incurred by the lien claimants. The other side of the coin is that if the motion had not proceeded as it did 430 could have been faced with a maximum of 22 claims for costs if each lien claimant had brought their own motion, conducted their own cross-examinations and filed their own material rather than proceeding on a co-operative basis.
[33] 430 did not concede it was an “owner” thus requiring the determination of that issue. The use of a motion to determine the issue in terms of form was far more proportional than having the issue determined by a conventional trial which would have required the active participation of all the parties.
[34] 430 submits that “The Court’s task in assessing costs is to determine the amount of hours that the successful party ought to have devoted to the motion, and compensate it accordingly.” The submission is in error. Firstly, this is not an assessment of costs as determined by an assessment officer. In dealing with costs I have not assessed them but rather fixed costs on the basis of the applicable principles. One of those principles is not to engage in a mathematical calculation of hours times rate rather the applicable principle is to fix costs that are fair and just with reference to the reasonable expectation of the parties as to costs of such a motion.
[35] This motion was unusual in that on the eve of argument 430 settled with the lien claimant whose counsel was advancing the motion on behalf of all the lien claimants. No attempt was made to address costs at that time by any party including 430 who knew other lien claimants had contributed to the costs of the motion, rather costs were left to be addressed after my disposition. After the adjournment of the motion there was little co-operation from counsel for Black & MacDonald. The material prepared for the motion was turned over to the lien claimants proceeding with the motion only when a further payment of $15,000 was made together with a commitment for payment of a future payment of $10,000 by the plaintiff. The lien claimants proceeding with the motion then were given the material prepared for the motion. Subsequently after my disposition on June 10, 2012 counsel for Black & MacDonald provided his dockets indicating which entries were solely motion entries, non-motion entries and mixed entries.
[36] Counsel for the lien claimant Greyfield Construction Co. Ltd. then distilled the entries applying Black & MacDonald rates and arrived at a figure of $56,465.00 inclusive of fees, disbursements and GST as the amount applicable for work on the motion by counsel for Black & MacDonald on a partial indemnity basis. For this work Black & MacDonald received $65,400.00 in total from ten of the other lien claimants. The methodology used to arrive at $56,465.00 I find to be fair and reasonably accurate and the figures arrived at are borne out by the dockets tendered by counsel for Black & MacDonald. As noted above three bills of costs were tendered by three of the lien claimants who worked on the motion which together with the amount claimed for work by counsel for Black & MacDonald totaled $122,157.38 on a partial indemnity basis inclusive of disbursements and GST. The cost of transcripts was estimated at $1,500.00 which appeared low for the six cross-examinations which took place over two days.
[37] I had before me on the motion the following material:
(a) Motion record dated May 31, 2010 prepared by counsel for the lien claimant Black & McDonald Limited containing a notice of motion and the affidavit of John Higginson, the vice-president of Black & McDonald Limited, sworn May 31, 2010;
(b) The responding motion record of the defendant 430 dated June 29, 2010 containing the affidavit of Bernard Pageau the Director of Legal affairs of Quebecor Media Inc. the parent company of 430 sworn June 28, 2010;
(c) The supplementary motion record dated August 9, 2010 prepared by counsel for the lien claimant Black & McDonald Limited containing the supplementary affidavit of John Higginson, the vice-president of Black & McDonald Limited sworn July 21, 2010, the affidavit of Shane Ellis, an employee of Black & McDonald Limited sworn July 23, 2010, the affidavit of Peter Hillar, the president of the lien claimant Greyfield Construction Co. Ltd., sworn July 20, 2010 and the affidavit of Darcy D’Amour, project manager with the lien claimant Ainsworth Inc., sworn August 9, 2010;
(d) The supplementary motion record dated March 12, 2012 prepared by counsel for the plaintiff containing the affidavit of Marc Dumont, the president of the plaintiff, sworn March 12, 2012, a copy of the statement of claim in this action and a copy of the statement of defence of the defendant 430 in this action;
(e) The supplementary responding motion record of the defendant 430 dated March 27, 2012 containing the supplementary affidavit of Mark Hall, general manager, Islington Division of Quebecor Media Printing Inc., the successor by amalgamation to the defendant 430, sworn March 23, 2012;
(f) Volume 1 of the Examination Brief dated April 23, 2012 containing 1) transcript of examination of Jean-Francois Beaulieu, 2) transcript of the examination of Daniel Perrault, 3) Transcript of the cross-examination of Bernard Pageau and 2 exhibits, 4) Transcript of the cross-examination of Mark Hall, 5) transcript of the cross-examination of John Higginson, 6) transcript of the cross-examination of Shane Ellis, 7) answers to undertakings and under advisements of Jean-Francois Beaulieu, 8) supplementary answers of Jean-Beaulieu;
(g) Volume 2 of the Examination Brief dated April 23, 2012 containing 9) second supplementary answers of Jean-Francois Beaulieu and 10) answers to undertakings of Bernard Pageau; and
(h) Facta and books of authority from each side.
[38] Taking into account my findings, the material before me on the motion, the submissions made and applying the principles set out above and in particular the principle of proportionality and that the costs award as fixed should reflect a fair, just and reasonable amount, and that in fixing that amount I considered the reasonable expectation of the parties as to costs of this motion, I fix costs of the motion and preparation for it on a partial indemnity basis inclusive of fees, disbursements and GST at $93,500.00 payable by 430 as set out below.
[39] The lien claimants asked that I apportion any costs found payable by 430 as between the lien claimants who participated on the motion, other than Black & MacDonald, and those who made payments to Black & MacDonald on account of the motion ratably on the basis of their contribution both financial and by way of lawyer time. In the following table I have listed the lien claimants by name and set out their financial contribution, their counsel time contribution and determined for each their percentage contribution towards the motion based on their total contribution. I then applied their percentage contribution as against he costs award of $93,500.00 and then set out their respective share of the costs award. Their respective share is payable to each of them by 430 on confirmation of my interim report.
| Lien Claimant | Payment To Black & MacDonald’s Counsel | Dollar Value of Counsel Time Contribution on a Partial Indemnity Basis | Total Contribution | Percentage of Total Contribution Of All Lien Claimants | Amount Due From Costs Award |
|---|---|---|---|---|---|
| The State Group Inc. | $29,000.00 | $35,625.51 | $64,625.51 | 49.5% | $46,282.50 |
| Dean Chandler Roofing Limited | $4,000.00 | Nil | $4,000.00 | 3.1% | $2,898.50 |
| Regulvar Canada Inc. | Nil | Nil | Nil | 0% | Nil |
| Ainsworth Inc. | $7,000.00 | $8,991.93 | $15,991.93 | 12.2% | $11,407.00 |
| Commercial Doors & Hardware | Nil | Nil | Nil | 0% | Nil |
| Greyfield Construction Co. Ltd. | $4,000.00 | $20,457.99 | $24,457.99 | 18.7% | $17,484.50 |
| Sure-Way Metal products Inc. | $1,500.00 | Nil | $1,500.00 | 1.1% | $1,028.50 |
| Viking Fire Protection Inc. | Nil | Nil | Nil | 0% | Nil |
| George and Asmussen Limited | $7,000.00 | Nil | $7,000.00 | 5.4% | $5,049.00 |
| Cee Elevator Service Ltd. | Nil | Nil | Nil | 0% | Nil |
| Enterprises Pol R Inc./ Pol R Enterprises Inc. | $2,000.00 | Nil | $2,000.00 | 1.5% | $1,402.50 |
| Gerrie Electric Wholesale Limited | Nil | Nil | Nil | 0% | Nil |
| James Kemp Construction Limited | $2,000.00 | Nil | $2,000.00 | 1.5% | $1,402.50 |
| Kitchener Glass Ltd. | Nil | Nil | Nil | 0% | Nil |
| Technique Acoustique (L.R.) Inc. | $2,100.00 | Nil | $2,100.00 | 1.6% | $1,496.00 |
| Kenneth Hinds | Nil | Nil | Nil | 0% | Nil |
| King Cross Contracting Limited | Nil | Nil | Nil | 0% | Nil |
| 962257 Ontario Inc. c.o.b. Darlington Steel | $7,000.00 | Nil | $7,000.00 | 5.4% | $5,049.00 |
| Total: | $130,675.43 | 100.0% | $93,500.00 |
[40] The vetting committee tendered its report dated February 28, 2012 and at the pre-trial for directions held on February 28, 2012 I considered the report and no one objecting made the following order: “The findings of the Vetting Committee as embodied in the report be and are accepted as findings of the court in the reference.” As the parties are aware it is likely I will be retired before the trial of the remaining issues in this reference is held and on that basis it is appropriate that my findings to date both in respect of the motion and my order relating to the report of the vetting committee be incorporated in an interim report.
[41] Attached as Schedule A is a form of Interim Report bearing today’s date which I am prepared to sign if all parties consent to it. If consent is obtained counsel for a lien claimant can attend at any of my 9:30 a.m. construction lien ex parte motions courts and have it signed failing which I fix the date and time for the further hearing to settle the report for 11:00 a.m. Monday July 23, 2012 before me at a courtroom on the 6th Floor, 393 University Avenue, Toronto, Ontario when the parties are required to attend. Confirmation of the report is governed by Rule 54.09 of the Rules of Civil Procedure.
Master Polika
Released: June 29, 2012
Schedule A
COURT FILE NO.: 08-CV-348019
ONTARIO SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CONSTRUCTION LIEN ACT
R.S.O. 1990, Chapter C. 30, as amended
MASTER POLIKA ) Friday the 29th day
) of June, 2012
B E T W E E N :
THE STATE GROUP INC.
Plaintiff
And
QUEBECOR WORLD INC. and 4307046 CANADA INC.
Defendant
INTERIM REPORT
In accordance with the judgment of reference dated January 6, 2010 granted by Justice Stinson in this action this reference proceeded by way of pre-trial hearings for directions on March 1, 2010, May 18, 2010 (in writing), August 16, 2010, January 18, 2011, May 3, 2011, August 8, 2011, October 24, 2011, February 28, 2011, May 22, 2012, and June 18, 2012 in the presence of counsel for various of the parties with the trial of the remaining issues fixed for twelve days commencing August 13, 2013;
ON READING the pleadings, the Report of the Vetting Committee dated February 28, 2012, my dispositions at the various pre-trial hearings for directions, the notice of motion May 31, 2010 and supporting material and cross-examinations in relation to the motion addressing whether the defendant 4307046 Canada Inc. is an owner such that the lien claimants who may prove liens are entitled to priority over its interests in the lands and premises described in Schedule A for their liens so proved and/or in the alternative that the lien claimants who may prove liens have priority over the conveyance to it of the said lands and premises and over any advances made by it in respect of the conveyance for their liens as proved as adjourned from time to time and on hearing the submissions of counsel for the parties appearing on the motion on May 2, 2012 and the submissions as to costs on June 18, 2012:
I FIND AND DECLARE THAT the defendant 4307046 Canada Inc. is an owner such that the lien claimants who may prove liens are entitled to priority over the interests of 430 in the lands and premises described in Schedule A for their liens so proved and in the alternative I FIND AND DECLARE THAT find that the lien claimants who may prove liens have priority over the conveyance of the said lands and premises to the defendant 4307046 Canada Inc. and over any advances made by 430 in respect of the conveyance for their liens so proved.
I FIND AND DECLARE THAT in respect of timeliness of and quantum of the claims for lien of the lien claimants my findings to date be and are as set out in Schedule B.
I FIND AND DECLARE THAT the costs of the motion determining whether the defendant 4307046 Canada Inc. is an owner and the priority between the defendant 4307046 Canada Inc. and the lien claimants in respect of the lands and premises set out in Schedule A be and are fixed at $93,500.00 payable by the defendant 4307046 Canada Inc. to each lien claimant in the amount as apportioned in Schedule C and on confirmation of this Interim Report each lien claimant entitled to a payment of costs may issue writs of execution for the amount payable to the lien claimant against the defendant 4307046 Canada Inc.
This Interim Report bears post judgment interest at the rate of percent per annum.
Master Polika
SCHEDULE A
PIN: 7373-0030 (LT)
DESCRIPTION: PT LT 25 & 26 CON A FRONTING THE HUMBER AS IN EB126856 EXCEPT PTS 2 & 3 EXPROP
PLAN 7618, T/W EB171359 ETOBICOKE TOGETHER WITH A RIGHT-OF-WAY OVER PARTS 2, 3, 5, 6, 7, 8, 9, 12, 13, 14 AND 16 ON PLAN E197531. T/W WITH EASE OVER PARTS 19 AND 20 ON PLAN 66R—17862 AS IN E197531. , CITY OF TORONTO
ADDRESS: 2250 Islington Avenue, Toronto
SCHEDULE B
TABLE OF FINDINGS AS TO TIMELINESS AND QUANTUM
OF THE LIEN CLAIMS
| Lien Claimant | Instrument Number | Amount Claimed | Timeliness | Quantum | Other Finding |
|---|---|---|---|---|---|
| Global Precision Installations Inc. | E491059 | $557,108.52 | Not applicable | Not applicable | Lien withdrawn |
| HR Draper Industrial Services Ltd. | E493979 | $187,044.75 | Not applicable | Not applicable | Lien withdrawn |
| Violin Railroad Construction Company Inc. | E506750 | $41,687.50 | Preserved and perfected | $33,925.00 | Excess quantum satisfied |
| The State Group Inc. | AT1667741 | $1,600,000.00 | Preserved and perfected | $1,376,732.00 | Excess quantum satisfied or otherwise withdrawn |
| Dean Chandler Roofing Limited | AT1668551 | $410,244.91 | Preserved and perfected | $410,224.91 | Claim does not include holdback of $44,9929.69 |
| Regulvar Canada Inc. | AT1669377 | $96,771.90 | Not determined | Not determined | |
| Ainsworth Inc. | AT1673124 | $536,307.00 | Preserved and perfected | $134,355.00 with balance of claim for lien incorporating claim of subcontractor Gerrie Electric Wholesale Limited not determined | |
| Commercial Doors & Hardware | AT1677944 | $18,198.81 | Preserved but not perfected | $18,198.81 | |
| Greyfield Construction Co. Ltd. | AT1684792 | $769,270.80 | Not determined | $769,270.89 | |
| Sure-Way Metal products Inc. | AT1686198 | $333,210.70 | Not determined | $333,210.70 | |
| Black & MacDonald Limited | AT1687232 | $369,244.75 | Not determined | $369,244.75 | |
| Viking Fire Protection Inc. | AT1692351 | $143,544.63 | Preserved and perfected | $143,544.63 | |
| George and Asmussen Limited | AT1694885 | $130,369.40 | Not determined | $130,369.40 | |
| CEE Elevator Service Ltd. | AT1700714 | $144,693.46 | Not determined | Not determined | |
| Enterprise Pol. R. Inc./ Pol. R. Enterprises Inc. | AT17022820 | $62,049.52 | Preserved and perfected | $62,049.52 | |
| Gerrie Electric Wholesale Limited | AT1707134 | $59,699.20 | Not determined | $59,699.20 | $10,128.40 has been satisfied or otherwise withdrawn |
| James Kemp Construction Limited | AT1709857 | $232,473.29 | Not determined | Not determined | |
| Kitchener Glass Ltd. | AT1710426 | $19,683.78 | Not applicable | Not applicable | Lien satisfied, settled or otherwise withdrawn |
| Technique Acoustique (L.R.) Inc. | AT1716333 | $165,000.00 plus GST | Preserved and perfected | $165,000.00 inclusive of GST | Excess quantum satisfied or otherwise withdrawn |
| Kenneth Hinds | AT1733887 | $21,817.69 | Not determined | Not determined | |
| King Cross Contracting Limited | AT1751929 | $245,702.87 | Not applicable | Not Applicable | Lien satisfied, settled or otherwise withdrawn |
| 962257 Ontario Inc. c.o.b. as Darlington Steel | AT1927197 | $73,993.92 | Not determined | $73,993.92 |
SCHEDULE C
TABLE OF COSTS PAYABLE BY THE DEFENDANT 4307046 CANADA INC. FOR THE COSTS OF THE MOTION DETERMINING WHETHER THE DEFENDANT 4307046 CANADA INC. IS AN OWNER AND THE PRIORITY BETWEEN THE DEFENDANT 4307046 CANADA INC. AND THE LIEN CLAIMANTS IN RESPECT OF THE LANDS AND PREMISES SET OUT IN SCHEDULE A
| Lien Claimant | Amount Payable by the defendant 4307046 Canada Inc. From Costs Award |
|---|---|
| The State Group Inc. | $46,282.50 |
| Dean Chandler Roofing Limited | $2,898.50 |
| Regulvar Canada Inc. | Nil |
| Ainsworth Inc. | $11,407.00 |
| Commercial Doors & Hardware | Nil |
| Greyfield Construction Co. Ltd. | $17,484.50 |
| Sure-Way Metal products Inc. | $1,028.50 |
| Viking Fire Protection Inc. | Nil |
| George and Asmussen Limited | $5,049.00 |
| Cee Elevator Service Ltd. | Nil |
| Enterprises Pol R Inc./ Pol R Enterprises Inc. | $1,402.50 |
| Gerrie Electric Wholesale Limited | Nil |
| James Kemp Construction Limited | $1,402.50 |
| Kitchener Glass Ltd. | Nil |
| Technique Acoustique (L.R.) Inc. | $1,496.00 |
| Kenneth Hinds | Nil |
| King Cross Contracting Limited | Nil |
| 962257 Ontario Inc. c.o.b. Darlington Steel | $5,049.00 |
[^1] The State Group Inc. v. Quebecor World Inc. and 4307046 Canada Inc., 2012 ONSC 2967
[^2] 2010 CarswellOnt 2962, 2010 ONSC 2695, 92 C.L.R. (3d) 284
[^3] Canadian National Railway v Royal & Sun Alliance Insurance Co. of Canada, 2005 CanLII 33041 (ON SC), 2005 CarswellOnt 4402, 30 C.C.L.L (4th) 235, 77 O.R. (3d) 612 (Ont.S.C.) at para. 10.
[^4] In the Matter of the Estate of Ruth Dorothea Smith, deceased, 2011 CarswellOnt 5677, 2011 ONCA 491, 106 O.R. (3d) 161 (Ont.C.A.)supra. at para. 50
[^5] In the Matter of the Estate of Ruth Dorothea Smith, deceased, 2011 supra., at para. 18