SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 10-4704-SR

DATE: 2014-02-28

RE: Lidamac Inc., Plaintiff

AND:

Five Star Paving (Cambridge) Inc., Defendant

BEFORE: The Honourable Mr. Justice G. E. Taylor

COUNSEL:
Matt Milczarczyk, Counsel, for the Plaintiff

David Thrasher Counsel, for the Defendant

Cost ENDORSEMENT

[1] After a trial that extended over parts of three days, I awarded the plaintiff damages of $15,000 based on my finding that the plaintiff suffered damages of $25,000 but it had withheld payment of $10,000 on the contract price. I have now received written submissions from counsel for both parties with respect to costs.

[2] Counsel for the plaintiff seeks an order for costs of $8000. That amount is calculated on the basis of disbursements for two expert reports and the attendance of an expert to testify at trial in the amount of $3639.73, other disbursements totaling $657.64 and $3702.63 for partial indemnity fees including HST.

[3] Counsel for the defendant seeks an order for costs of $22,416.82. That amount is calculated on the basis of a disbursement for expert fees of $9338.78, other disbursements totaling $523.05, HST on disbursements in the amount of $49.28 and partial indemnity fees of $11,067 exclusive of HST.

[4] The amount of the judgment was within the jurisdiction of the Small Claims Court. The result therefore implicates Rule 57.05 (1) of the Rules of Civil Procedure which permits but does not mandate an order that the plaintiff recover no costs of the action.

[5] The defendant did not make an offer to settle. Although the defendant achieved success on its counterclaim, it was never an issue at the trial that the defendant should not be credited with the $10,000 held back by the plaintiff from the full contract price. The defendant’s position was that it did not breach its contract with the plaintiff. I found to the contrary. Therefore, in my view, there is no basis for an award of costs in favour of the defendant.

[6] Counsel for the plaintiff takes what I find to be a most reasonable position on costs. The plaintiff’s submissions on costs recognize that the judgment was within the monetary jurisdiction of the Small Claims Court. I find, however, that it was necessary for evidence to be presented by an expert and the defendant saw fit to retain its own expert in defence of the claim. I find the amounts claimed by the plaintiff for expert fees and other disbursements to be reasonable. I find the amount claimed for partial indemnity fees to be modest.

[7] Accordingly, the plaintiff is entitled to its costs of the action which I fix in the amount of $8000 inclusive of disbursements and HST which costs are payable by the defendant forthwith.

G. E. Taylor J.

Date: February 28, 2014