Court File and Parties

COURT FILE NO.: CV-12-108418-00
DATE: 20131105

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Vaughan Paving Ltd., Plaintiff

-and-

Unimac Group Ltd., Trustees of the Mount Albert United Church Congregation of the United Church of Canada, Mount Albert United Church Senior Citizens’ Foundation, The Congregation of the Mount Albert United Church of Canada, Canada Mortgage and Housing Corporation, and First National Financial GP Corporation, Defendants

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

COUNSEL:
Emilio Bisceglia, for the Plaintiff

Justin P. Baichoo, for the Defendant, Unimac Group Ltd.

HEARD: Written Submissions – September 30, 2013

Costs ENDORSEMENT

[1] The plaintiff was entirely successful in obtaining summary judgment. The plaintiff seeks costs of the motion, inclusive of HST and disbursements in the amount of approximately $27,000. The plaintiff takes the position that the costs should be fixed on a substantial indemnity scale because the defendant Unimac Group Ltd. (“Unimac”) had no basis to advance the defences which it did on this matter.

[2] Unimac takes the position that the motion was relatively simple requiring minimal steps prior to the hearing of the motion and that the costs claimed by the plaintiff are excessive. Unimac submitted a costs outline reflecting costs of approximately $5,000.

[3] In fixing costs, the Court of Appeal has made it clear in Boucher v. Public Accountants Council (Ontario) (2004) 2004 14579 (ON CA), 48 C.P.C. (5th) 56 that the costs must be fair and reasonable from the perspective of the unsuccessful party. Fundamentally, the costs must be reasonable.

[4] I am not satisfied that a costs award on a substantial indemnity is appropriate on the facts of this case. While it might be said that Unimac could have taken a more enlightened approach to the conduct of this litigation, its conduct was not of such a nature to warrant the sanction by this court of substantial indemnity costs. I note that there was no offer to settle from the plaintiff that might perhaps have triggered a substantial indemnity costs award.

[5] A sophisticated contractor like Unimac could reasonably anticipate paying costs of an unsuccessful defence of a summary judgment motion in the range of $12,000 to $18,000, plus disbursements. In fixing costs in the middle of that range, I take into account that a number of the defences raised by Unimac were doomed to fail. As such, I am fixing costs in the amount of $15,000, plus HST, plus the disbursements claimed of $3,218.30. These costs are payable within thirty days.

Justice M.L. Edwards

Released: November 5, 2013