SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: 13-56935
Date: October 8th, 2013

RE: STRUCTFORM INTERNATIONAL LIMITED, Plaintiff

AND:

ASHCROFT HOMES – 111 RICHMOND ROAD INC, et.al., Defendants

BEFORE: MASTER MACLEOD

COUNSEL:
David Dwoskin, for the Defendants, Moving Party
Dan J. Leduc, for the Plaintiff, Responding Party

HEARD: In writing

ENDORSEMENT

[1] This was a motion by the defendant Ashcroft for reduction of the security held in court. The motion was resisted by the plaintiff. Though Ashcroft sought to have the security of $2,689,126.74 reduced to $347,866.20 it was unable to demonstrate such extreme over security. In the result, the security was reduced to $1,931,227.00.

[2] Ashcroft had offered to settle the motion by reducing the security to $1,500,000.00 and the plaintiff had offered to reduce it to $2,666,868.16. Neither party beat their offer and this is not a situation in which costs should be awarded on a substantial indemnity scale.

[3] Costs are governed by s. 86 of the Construction Lien Act and only to the extent that it is not inconsistent with the Act by Rule 57 of the Rules of Civil Procedure. There is nothing in s. 86 which would have the effect of denying costs to the successful party on a motion of this type. I cannot find that reduction of over $700,000.00 in security was a trivial matter nor that the motion was unnecessary nor that it unreasonably delayed the action. S. 86 (2) of the Act is essentially the same as Rule 57.01 (1) (e) though the Act is more specific. It is not applicable to this motion.

[4] Ashcroft was successful in obtaining some relief and it is apparent that Ashcroft’s offer to settle was far more reasonable than that of the defendant judged by that result. Ashcroft as the moving party is entitled to costs of the motion. On the other hand the costs actually incurred on this motion are nothing short of astonishing notwithstanding the size of the claim. The parties collectively spent over $120,000.00.

[5] Costs awarded on a motion are not intended to provide full indemnity to the successful party nor, except in the rarest of cases, are they intended to punish the losing party. It is for this reason that even winning a motion is an expensive proposition and parties are expected to consider carefully the costs and benefits of bringing such motions even in ordinary actions. Under the Construction Lien Act the court must also engage in such analysis because except for motions specifically allowed by the Act all other motions require leave based on consideration of litigation efficiency. In this case the motion is permitted by the Act and the relief obtained was significant even if it is not all that the moving party had hoped for.

[6] The defendant was not completely correct in the position it took and the plaintiff was not completely wrong. The defendant is therefore entitled to a reasonable award of costs because it was reasonably successful. Having regard to the costs actually incurred but also to the other factors in Rule 57.01 and in particular to s. 57.01 (1) (0.b), (c) and (d), I fix the costs of the motion at $15,000.00 on a partial indemnity scale. These costs are to be paid by the plaintiff to the defendant within the next 30 days.

October 8th, 2013

Master MacLeod