Eurodale Developments v. Rimgate Holdings 2012 SCJ mini 44

SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-10-1977-00
DATE: 20121205

RE: Eurodale Developments Inc. v. Rimgate Holdings Ltd.

BEFORE: MacKenzie J.

COUNSEL:
Mr. S. Kazushner , for the plaintiff
Ms. S. Wu , for the defendant

ENDORSEMENT Re: COSTS

1By an Endorsement dated October 22, 2012 I made an order (a) granting leave to the plaintiff under s. 67(2) of the Construction Lien Act and Rule 48.04 of the Rules of Civil Procedure to conduct its discovery of the defendant; (b) directing the defendant to conduct its examination for discovery of the plaintiff prior to the plaintiff conducting its examination for discovery of the defendant; (c) entitling the plaintiff to conduct a site examination of the building on the defendant’s premises on or before November 16, 2012; and (d) amending the timetable for future steps in the pre-trial proceedings in the action.

2The costs of the plaintiff’s motion and the defendant’s cross-motion were reserved and were directed to be the subject of written submissions from the parties. I have since received submissions comprising:

a) the submissions of the plaintiff;

b) the responding submissions of the defendant; and

c) the reply submissions of the plaintiff to the defendant’s responding submissions.

3The plaintiff’s position is that the plaintiff was entirely successful in its motion against the defendant and the plaintiff’s motion was wholly necessary on the basis of what the plaintiff characterizes as the defendant’s consistent and persistent campaign to hinder and delay the ordinary progress of the proceeding. In support the plaintiff relies on, among other things, correspondence to defendant’s counsel dated July 4, 2012 in which plaintiff’s counsel gave defendant’s counsel notice that because of counsel’s conduct, the plaintiff would bring a motion for the relief sought (and obtained herein) and seek costs if successful. On this basis, the plaintiff submits that it should be awarded costs on the substantial indemnity scale, the amount to be fixed at $14.731.20 as set out in its Bill of Costs or alternatively, on the partial indemnity scale, the amount to be fixed at $10,618.00.

4In sum, the plaintiff’s position is that the defendant was not successful in its cross-motion and that its cross-motion illustrates the continuing campaign by the defendant “cloud the real issues and dispute” and thereby increase the plaintiff’s costs.

5The defendant’s position is that the defendant is entitled to its costs as its cross-motion was successful and was caused only by the plaintiff’s failure to attend a scheduled examination for discovery. Further, the defendant’s position is that the plaintiff is not entitled to costs as its motion was necessitated by its failure to agree to discoveries and then having set down the action for trial. In support of its position, counsel refers to allegations set forth in affidavits, including two affidavits by one, Mary Ann Fisher, a legal assistant in counsel’s law firm, the first sworn September 26, 2012 and the second sworn October 10, 2012. These allegations have not been subject to any testing let alone factual findings by the court as set out in Endorsement No. 2 dated October 29, 2012, which Endorsement contains the Reasons for the above Order previously referred to 2012. Accordingly, these allegations and the costs submission in the defendant which are based on these affidavits are not dispositive of the question of a) entitlement or b) quantification of any costs award.

6The reply submissions of the plaintiff in regard to the defendant’s responding submissions are apposite. The gist of these reply submissions is set out in paragraph 2, as follows:

“The costs submissions of Rimgate…are the defendant’s continued attempts to re-litigate issues raised by them. Those submissions are simply intentional distractions from the real and only issues that were addressed at the motion before Your Honour on October 19, 2012 which was granting the plaintiff leave to conduct a site inspection and examinations for discovery.”

7I agree with the reply submissions of the plaintiff in this regard.

8In the result, I fix the costs of the plaintiff on the partial indemnity scale in the amount of $10,618.00, payable by the defendant to the plaintiff forthwith. There shall be no award of costs in the cross-motion to the defendant.

MacKenzie J.