ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 07-CV-39937B1
DATE: 2013-06-11

BETWEEN:

LEDCOR CONSTRUCTION LTD.
Plaintiff/Respondent

– and –

ATTORNEY GENERAL OF CANADA
Defendant/Applicant

– and –

HYDRACORP CANADA LTD. and TOBAN ELECTRIC INC.
Non-parties

Ronald W. Price, for the Plaintiff/Respondent

Ronald S. Petersen, for the Defendant/Applicant

Ian B. McBride, for the Non-parties

HEARD: (by written submissions)

summary judgment motion on costs

PARFETT J.

1This matter is a somewhat unusual request by two non-parties to a summary judgment motion for their costs.

Background

2The summary judgment motion was brought by the Attorney-General of Canada (AGC) seeking to dismiss that portion of the plaintiff Ledcor Construction Ltd.’s (“Ledcor”) claim as it related to two sub-trades – Hydracorp Canada Ltd. (“Hydracorp”) and Toban Electric Inc. (“Toban”). That motion was dismissed.

3Initially, the AGC had served not only Ledcor, but also Hydracorp and Toban even though they were not in fact parties to the main action that was at issue in the summary judgment motion. As noted in the submissions regarding costs, on December 11, 2012 approximately a week before the motion was heard, the AGC abandoned its motion as it related to the two non-parties. The two non-parties now request that their costs of preparation for the motion be paid by AGC.

4Hydracorp and Toban argue that the AGC’s decision to join them in the summary judgment motion was done for tactical reasons only. AGC points out that as part of their argument with respect to the summary judgment motion was the fact that they did not know the basis or validity of the claims being made against them by these two non-parties and were not in a position to find out precisely because they were non-parties in the action between Ledcor and AGC. Ultimately, that argument did not go far because both Hydracorp and Toban agreed to participate in discoveries with AGC.

5In my view, it was not inappropriate for AGC to join Hydracorp and Toban to the summary judgement motion given their knowledge of the situation at the time. In any event, Hydracorp and Toban did not file responding materials and were not required to participate in the motion.

6Under these circumstances, I find that it would be inappropriate to award costs against AGC.

Madam Justice Julianne A. Parfett

Released: 2013-06-11

COURT FILE NO.: 07-CV-39937B1

DATE: 2013-06-11

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

LEDCOR CONSTRUCTION LTD.

Plaintiff/Respondent

– and –

ATTORNEY GENERAL OF CANADA

Defendant/Applicant

– and –

HYDRACORP CANADA LTD.

Non-party

– and –

TOBAN ELECTRIC INC.

Non-party

summary judgment motion on costs

Parfett J.

Released: 2013-06-11