Court File and Parties

COURT FILE NO.: CV-12-109309-00

DATE: 20131105

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Unimac Group Ltd., Plaintiff

-and-

Trustees of the Mount Albert United Church, Congregation of the United Church of Canada, Mount Albert United Church Senior Citizens’ Foundation and The Congregation of the Mount Albert United Church of Canada, Defendants

BEFORE: The Honourable Mr. Justice M.L. Edwards

COUNSEL:
Justin P. Baichoo, for the Plaintiff

Craig Losell, for the Defendants

HEARD: Written Submissions – October 2, 2013

Costs ENDORSEMENT

[1] The defendant, Mount Albert United Church Senior Citizens’ Foundation (the “Foundation”) was entirely successful in obtaining an order of this court, vacating four liens totaling $1,868,549.48, upon payment into court of the claim for lien registered by the plaintiff, Unimac Group Ltd. (“Unimac) in the amount of $1,038,867.76. The difference between the totality of the liens of $1,868,549.48 and the amount required to be paid in of $1,038,867.76 was made up of three claims for lien of various subcontractors. Unimac took the position that the Foundation should be required to pay into court the total of all lien claimants. The Foundation was therefore successful and Unimac was entirely unsuccessful in its opposition to the motion.

[2] Prior to the motion, the Foundation had served an offer to settle, the effect of which would have been to mirror almost without exception the order that was made by this court. The offer was obviously not accepted and the motion proceeded before me.

[3] The Foundation takes the position that it should be entitled to partial indemnity costs up to the date that the offer to settle was served and substantial indemnity costs thereafter. On a partial indemnity basis the Foundation seeks costs in the amount of approximately $28,000 and on a substantial indemnity basis, costs in the amount of approximately $8,000 for a total of approximately $36,000, which amount is inclusive of disbursements incurred of approximately $6,000.

[4] In fixing costs, this court is mindful of the guidance given by the Court of Appeal in Boucher v. Public Accountants Council of Ontario[^1]. Costs should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party as opposed to an exact measure of the actual cost to the successful litigant. In fixing the cost of the motion before this court, Unimac must have been mindful of the fact that in refusing to accept the Foundation’s offer to settle, Unimac could potentially be faced with an argument that it should pay costs on a substantial indemnity basis for its failure to accept the offer. It is also not lost on this court that the Foundation is a non-profit organization and undoubtedly had good reasons for the motion brought before this court, although the purpose of the motion was never made known to the court.

[5] Counsel for Unimac submitted a costs outline, which on a substantial indemnity basis totaled $2,673.58. None of this cost outline reflects anytime for the preparation for the motion or attending on the motion. Amongst various arguments put forward by Unimac, it is noted that the offer to settle was served less seven days prior to the hearing of the motion and that much of the time claimed by counsel for the Foundation related to issues that were not the subject matter of the motion.

[6] I have considered the submissions of Unimac in this regard and I am of the view that Unimac would have anticipated the costs of a motion like that heard by this court in the range of $15,000 to $20,000. The fact that Unimac chose not to accept an offer to settle, that essentially mirrored the relief ordered by this court, is something that in my view this court should consider in fixing costs at the higher end of the aforesaid range. As such, Unimac shall pay to the Foundation costs fixed in the amount of $18,000, plus HST, plus the disbursements claimed in the amount of $6,648.74, inclusive of HST (there had been no substantial dispute with respect to the aforesaid disbursements). These costs are payable within thirty days.

Justice M.L. Edwards

Released: November 5, 2013

[^1]: (2004) 2004 14579 (ON CA), 48 C.P.C. (5th) 56.