Ontario Superior Court of Justice
Court File No.: CV-12182
Date: 2013-12-20
ONTARIO
SUPERIOR COURT OF JUSTICE
Between
JIMMIE RAYMOND JAMES and BRENDA LEE JAMES
Plaintiffs
– and –
MILLER GROUP INC., SMITH CONSTRUCTION (division of The Miller Group), SERNOSKIE BROS. LIMITED and ALAN JOSEPH SERNOSKIE
Defendants
Jaime Wilson, for the Plaintiffs
Ryan Garrett, for the Defendants, Miller Group Inc., and Smith Construction (Division of Miller Group)
Craig O’Brien, for the Defendants Sernoskie Bros. Limited and Alan Joseph Sernoskie
Heard: In writing
COSTS DECISION
T.D. RAY, J
[1] The plaintiffs’ motion to amend in order to delete any claims against Sernoskie (Ltd and Alan) following a Pierringer agreement was successful (2013 ONSC 3266). Essentially it was Sernoskie’s motion since they were intended to be the beneficiary.
[2] I received costs submissions from Sernoskie and from Miller Group. Miller suggested that each party should bear their own costs, while Sernoskie contend they should be entitled to their costs since they were the successful party.
[3] I am unable to be overly critical of any party for failing to consent. The knub of the issue is described at paragraph 9 of my decision, and reflects the fact that the positions of the parties staked out in oral argument was arguably a bit of a stretch in the face of the language of the Pierringer agreement. Having said that this motion was probably necessary in order to create certainty between the parties, which I believe was achieved and will enable the action to move forward. Even so, the plaintiffs and Sernoskie were the successful parties, and nothing was placed before me to suggest that the usual rule of costs to the successful party should be followed.
[4] The plaintiffs and Sernoski are therefore entitled to their costs. I do not find that Miller Groups conduct justifies a full indemnity award (as suggested ) or a substantial indemnity award of costs; and therefore the usual award of partial indemnity in this case is appropriate. I consider that partial indemnity costs should usually be calculated as 55% of a reasonable full indemnity bill after considering the factors in rule 57.01 of the Rules of Civil Procedure.
[5] Costs outlines of the parties filed at the conclusion of argument were at wide variance. Miller’s full indemnity outline was at $17,500.00 while Sernoskie’s outline was at $9900.00. I note that Miller had noted some 70 hours for research and review of motion materials which is excessive. This motion had the potential to affect the parties rights and liabilities in the litigation and was therefore important.
[6] I consider the full indemnity outline of Sernoskie to be reasonable having regard to the various factors, and assess their partial indemnity costs at $6,000.00 inclusive of HST. Costs payable by Miller.
Honourable Justice Timothy Ray
Released: December 20, 2013
COURT FILE NO.: CV-12182
DATE: 2013-12-19
ONTARIO
SUPERIOR COURT OF JUSTICE
Between
JIMMIE RAYMOND JAMES and BRENDA LEE JAMES
Plaintiffs
– and –
MILLER GROUP INC., SMITH CONSTRUCTION (division of The Miller Group), SERNOSKIE BROS. LIMITED and ALAN JOSEPH SERNOSKIE
Defendants
COSTS Decision
Honourable Justice Timothy Ray
Released: December 20, 2013