ONTARIO SUPERIOR COURT OF JUSTICE
Editor’s Note: Corrigendum released on June 28, 2013. Corrigendum has been add on the Original judgment with text of corrigendum appended.
COURT FILE NO.: C-1023-10
COURT FILE NO.: C-11603-09
COURT FILE NO.: C-11226-08
DATE: 20130628
ONTARIO
SUPERIOR COURT OF JUSTICE
CORRIGENDUM
Corrected decision: In the decision released January 30, 2013, the Court File No. C-1126-08 was stated incorrectly. It shall read Court File No. C-11226-08.
_________________________________
The Honourable Mr. Justice E.J. Koke
Released: June 28, 2013
COURT FILE NO.: C-1023-10
COURT FILE NO.: C-11603-09
COURT FILE NO.: C-1126-08
DATE: 20130327
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN
COURT FILE NO.: C-1023-10
Sandro Steel Fabrication Ltd.
Plaintiff/Respondent
– and –
Edward Chiesa and Edward Engineering
Defendant
Sean Lawlor, for the Plaintiff/Responding Party
Peter J. Mitchell, for the Defendant, Moving Party
COURT FILE NO.: C-11603-09
BETWEEN
Tribury Construction (1995) Inc.
Plaintiff
– and –
Sandro Steel Fabrication Ltd., Halsall Associates Limited , Edward Engineering, Edward Chiesa, Castellan James & Partners Architects Inc. and
Laurentian University of Sudbury
Defendants
Gerard E. McAndrew, for the Plaintiff/Applicant
Sean Lawlor, for the Defendant Sandro Steel Fabrication Ltd.
Peter J. Mitchell, for the Defendants, Edward Engineering and Edward Chiesa
AND BETWEEN
Sandro Steel Fabrication Ltd.
Plaintiff by Counterclaim
– and –
Tribury Construction (1995) Inc.
Defendant by Counterclaim
Sean Lawlor, for the Plaintiff by Counterclaim
Gerard E. McAndrew, for the Defendant by Counterclaim
AND BETWEEN
Sandro Steel Fabrication Ltd.
Plaintiff by Crossclaim
– and –
Halsall Associates Limited , Edward Engineering, Edward Chiesa, Castellan James & Partners Architects Inc. and Laurentian University of Sudbury
Defendants by Crossclaim
Sean Lawlor, for the Plaintiff by Crossclaim
Peter J. Mitchell, for the Defendant, Edward Engineering and Edward Chiesa
COURT FILE NO.: C-11226-08
BETWEEN
Sandro Steel Fabrication Ltd.
Plaintiff
– and –
Tribury Construction (1995) Inc. and Laurentian University of Sudbury
Defendants
Sean Lawlor, for the Plaintiff, Responding Party
Gerard E. McAndrew, for Defendant/Moving Party, Tribury Construction (1995) Inc.
HEARD: November 28, 2012
ENDORSEMENT ON COSTS (MOTIONS HEARD ON NOVEMBER 28, 2012)
Koke J.:
BackGround
[1] In June 2007, construction of the Faculty of Education Building at Laurentian University ground to a halt because of the “failure” of certain steel connections. This gave rise to three law suits, with related crossclaims and counterclaims. The law suits are referred to herein as “the 2008 lien action”, “the 2009 action” and “the 2010 action”. The subject matter of the three law suits overlapped and they largely involved the same parties. On November 28, 2012 the court heard a number of motions which were brought in relation to these three claims.
[2] The three parties to the motions were as follows: Tribury Construction (1995) Inc. (“Tribury”), which was retained by Laurentian University as the General Contractor on this construction project, Sandro Steel Fabrication Ltd. (“Sandro”), which was retained by Tribury as the steel fabricator and installer and Edward Engineering and its principal Edward Chiesa (collectively “Edward”) who were retained by Sandro as structural consultants to review and “seal” the steel connection details.
[3] Sandro was the plaintiff in the 2008 Construction Lien action and it claimed against Tribury as general contractor for fees owing to it on the project. Tribury was the plaintiff in the 2009 action and it claimed against various parties, including Sandro and Edward, for remediation damages which it incurred in relation to the failed steel connections. Sandro filed a crossclaim in the 2009 action against Edward, both for contribution and indemnity in relation to Tribury’s claim and for the remediation damages it had sustained as a result of the failure of the steel. Sandro also counterclaimed against Tribury in the 2009 action for the recovery of its outstanding fees. Sandro was the plaintiff in the 2010 action which it commenced against Edward for recovery of its remediation damages.
[4] Edward’s motion was for summary judgment dismissing Sandro’s claims against it in the 2009 and 2010 actions, on the basis that the limitation period governing the actions had expired.
[5] Tribury’s motion was for an order striking Sandro’s counterclaim in the 2009 action on the basis that it was commenced after the expiration of the applicable limitation period, or alternatively, for failing to disclose a reasonable cause of action.
[6] Tribury also sought an order in the Construction Lien action for a declaration pursuant to section 37 of the Construction Lien Act, RSO 1990, c. C.30 that Sandro’s lien had expired since the action was not set down for trial within the two year period required by the Act, and for an order dismissing Sandro’s action pursuant to section 46 of the Act.
SUMMARY OF DECISIONS
The 2008 Lien Action
[7] The court exercised its discretion to permit the action to continue as an action in contract and Tribury’s claim for an order dismissing the lien action was denied. However, an order was made declaring that the lien had expired and that the lien bond in the amount of $220,913.23 be returned to Tribury.
The 2009 Action
[8] Edward’s claim for a dismissal of Sandro’s crossclaim for its remediation damages was granted.
[9] Edward’s claim for a dismissal of Sandro’s crossclaim for contribution and indemnity was denied.
[10] Tribury’s motion for a dismissal of Sandro’s counterclaim against it for its fees was granted.
The 2010 Action
[11] Edward’s motion for a dismissal of this action was denied.
DETERMINATION OF COSTS
The parties have not been able to agree as to the payment of costs of these motions and the matter has come back before me for a decision with respect to this issue.
Claim for Costs by Sandro
[12] Sandro claims costs, on a partial indemnity basis, in the amount of $20,982.56, and it seeks half of these costs from Tribury and half from Edward Engineering. It acknowledges that while some of its claims were struck out, the “net” result of the court’s decision is that all the claims were preserved in one form or another. It points out that neither Tribury nor Edward are any better off in the litigation now than they were before they brought the motions for summary judgment.
[13] I agree that the net result of the court’s decision is that all of Sandro’s claims were preserved in one form or another. However, I note that Sandro only achieved this result because it issued similar or duplicate claims in separate actions. For example, although the court granted Edward’s motion for a dismissal of Sandro’s crossclaim for its remediation damages in the 2009 action, Sandro could continue to claim these damages against Edward because it had commenced a separate action for the same relief in 2010 (“the 2010 action”). Similarly, although Tribury’s motion for a dismissal of Sandro’s counterclaim against it for its fees in the 2009 action was granted, Sandro could continue to claim against Tribury for these fees because the court had exercised its discretion in favour of Sandro in the 2008 lien action, an action in which Sandro had claimed the same relief.
[14] In my view, Sandro achieved divided success in relation to these motions. Furthermore, it was only able to achieve such success by bringing claims for the same relief in separate actions, thereby causing unnecessary expense to the opposing parties. In the circumstances I am denying its claim for costs.
Claim for Costs by Edward
[15] Edward points out that the court dismissed Sandro’s crossclaim against Edward for its remediation damages in the 2009 action but allowed the direct claim for these damages to proceed in the 2010 action. It argues that success on the motion was clearly divided and that in keeping with the principle that costs should follow the event, there should be no order as to costs as between Edward and Sandro.
[16] I agree with Edward’s submissions. There shall be no order as to costs as between Edward and Sandro.
Claim for Costs by Tribury
[17] Tribury claims costs against Sandro. It relies on the fact that the court awarded summary judgment dismissing Sandro’s counterclaim for its fees in the 2009 action. With respect to the 2008 lien action, it submits that it achieved substantial success in the lien action because the court declared that the lien had expired.
[18] In my view, success in relation to the motions brought by Tribury against Sandro was divided. Although there was a declaration by the court that the lien had expired, any benefit to Tribury in relation to this declaration was limited in view of the fact that Sandro had previously agreed that the bond was to be returned to Tribury. With respect to the order dismissing Sandro’s counterclaim for its fees in the 2009 action, the court’s decision to permit the lien action to proceed as a claim in contract negated any benefit to Tribury which otherwise might have resulted from this dismissal order.
[19] Tribury also claims the sum of $10,731 which was the purported cost to Tribury of maintaining the lien bond. Sandro argues that this is not a cost or disbursement related to the motion and is better characterized as a cost related to the bond in the underlying litigation. It also points out that the time for Tribury to have sought the alleged cost of maintaining the lien bond was when Tribury and Sandro Steel agreed that the bond should be released, and also that Tribury led no evidence respecting this cost on this alleged cost on the motion. I agree with Sandro’s submission with respect to this claim; in my view any claim for this expense should be dealt with in the context of the ongoing actions.
[20] In summary, success on the motions by Tribury was divided and in the circumstances I am not prepared to make an order as to costs in favour of Tribury.
Final Order
[21] For the above reasons, there shall no costs payable to or from any of the parties to these motions.
The Honourable Mr. Justice E.J. Koke
Released: March 27, 2013
COURT FILE NO.: C-1023-10
COURT FILE NO.: C-11603-09
COURT FILE NO.: C-1126-08
DATE: 20130327
ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: C-1023-10
BETWEEN
Sandro Steel Fabrication Ltd.
Plaintiff/Respondent
– and –
Edward Chiesa and Edward Engineering
Defendant
COURT FILE NO.: C-11603-09
BETWEEN
Tribury Construction (1995) Inc.
Plaintiff
– and –
Sandro Steel Fabrication Ltd., Halsall Associates Limited , Edward Engineering, Edward Chiesa, Castellan James & Partners Architects Inc. and Laurentian University of Sudbury
Defendants
COURT FILE NO.: C-1126-08
BETWEEN
Sandro Steel Fabrication Ltd.
Plaintiff
– and –
Tribury Construction (1995) Inc. and
Laurentian University of Sudbury
Defendants
Endorsement on Costs (Motions heard NOvember 28, 2012)
Released: March 27, 2013 Koke J.