SUPERIOR COURT OF JUSTICE – ONTARIO

MAIN REASONS RELEASED: 20131231

MOTION HEARD: 20130204

In the Matter of the Construction Lien Act,

R.S.O. 1990, C. C.30, As Amended

RE:

Advanced Construction Techniques Ltd.
Plaintiff

• and-

OHL Construction Canada and
Fomento De Construcciones Y Contratas
Canada Limited Partnership, A Limited Partnership

And

York University

Defendants

BEFORE: Master D. E. Short

COUNSEL: Andrew Heal Fax: (416) 583-5905
for the Plaintiff

Harvey J. Kirsh, Jay Nathwani Fax: (416)368-8280
for the Defendant, OHLConstruction Canada
and Fomento DeConstrucciones Y Contratas
Canada Limited Partnership,

REasons for Decision

I. Costs Award

[1] As part of the construction of an extension of the Toronto subway system a station was to be built on the campus of York University. Problems with that construction gave rise to the registration of a construction lien on the York campus.

[2] I dealt with a number of motions involving the parties arising out of that project in my reasons in Advanced Construction Techniques Ltd. v. OHL Construction Canada, 2013 ONSC 7505, [2013] O.J. No. 6013; 2013 ONSC 7505; 27 C.L.R. (4th) 213; 2013 CarswellOnt 18456.

[3] In those reasons I addressed issues including whether or not the subway could be liened at this stage and whether or not the claimed lien on the relevant lands had been properly preserved. As well issues relating to a proposed third-party claim against the TTC and the arbitrability of the issues between the parties needed to be decided.

[4] Ultimately I held in favour of ACT on all the main issues on the motions.

[5] At the end of my reasons I requested that the parties provide me with written submissions with respect to costs. The lien claimant’s counsel provided a cost outline with respect to each of the components making up the overall motions that were before me.

[6] A five page initial submission was supplemented by a further three pages of content responding to the losing party’s approximately 6 pages of submissions which were accompanied by copies of two relatively recent decisions of my colleague Master Albert dealing with costs in lien matters.

[7] A third case Pickering Harbour Co. v. Barton, 2007 CarswellOnt 874; 85 0. R. (3d) 526, was also provided by them to me.

[8] In that case Justice R. Clark canvassed the various factors to be taken into account in determining appropriate costs amount. He concluded his reasons with a paragraph containing the following observation:

“I must bear in mind, of course, that the overriding principle in determining an appropriate award for costs is not what counsel is entitled to charge his or her client, but, rather, what is a reasonable amount from the perspective of the losing party: Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 2005 1042 (ON CA), 75 O.R. (3d) 638, [2005] O.J. No. 160 (C.A.), citing its earlier decisions in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291, [2004] O.J. No. 2634, 48 C.P.C. (5th) 56 (C.A.) and Moon v. Sher, 2004 39005 (ON CA), [2004] O.J. No. 4651, 246 D.L.R. (4th) 440 (C.A.).”

II. Amount Sought

[9] The costs outlines filed on behalf of ACT seek a total of $77,877.66 with respect to the activities up to the completion of the original argument of the motions. Counsel attended before me from time to time while the main motions were under reserve to address various developing matters including a settlement reached with Monir, a sub-trade of ACT that had also registered a lien. As a consequence an increased overall total of $82,127.66 was sought, on a partial indemnity basis.

[10] ACT prepared its three cost outlines in advance or contemporaneously with the argument of the motions. Significantly the responding party OHL/FCC at no time has produced cost outlines, either at the time the motions were argued or at this stage of the matter.

III. Application of Rules of Civil Procedure

[11] The Construction Lien Act in many ways establishes a unique environment for the determination of such claims. Nevertheless where the Act is silent, the Rules of Civil Procedure are to be considered. Section 67 of the Act (with my emphasis added) reads:

67. (1) Summary procedure - The procedure in an action shall be as far as possible of a summary character, having regard to the amount and nature of the liens in question.

(2) Interlocutory proceedings - Interlocutory steps, other than those provided for in this Act, shall not be taken without the consent of the court obtained upon proof that the steps are necessary or would expedite the resolution of the issues in dispute.

(3) Application of rules of court - Except where inconsistent with this Act, and subject to subsection (2), the Courts of Justice Act and the rules of court apply to pleadings and proceedings under this Act.

[12] The amounts claimed and nature of the lien in question made these motions necessary and appropriate.

[13] The rules of court referred to in subsection 3 of the Rules of Civil Procedure which address the basis for the awarding of costs and those provisions, in my view are not inconsistent with the Construction Lien Act.

IV. Winning Party’s Costs Submissions

[14] There are many competing demands upon the time of my colleagues on the bench with respect to delivering reasons in complex cases.

[15] Once the matter is finished, attention ought to be given to other matters that have been waiting in line.

[16] Nevertheless, when amounts such as are in play on these cost assessments are being addressed there is an inclination to try to provide detailed reasons. Regrettably that simply adds to the delay in seeing the winning party paid whatever cost amounts are determined to be owing to it.

[17] In this case both counsel filed helpful written materials. Rather than recast that material I propose to set out extracts from the costs submissions which will give a flavour of the arguments that were before me.

[18] Inter alia ACT’s written submissions assert:

“In these motions you, OHL/FCC has not produced its costs outlines prepared then (or now) as a reference, despite and contrary to the provisions of Rule 57.01 (6). The clear inference is that OHL/FCC's costs of are substantially higher than ACT's”

“Generally ACT was successful. Costs follow the event, and for the reasons set out below, ACT seeks its partial indemnity costs as follows:

(a) on the motion to stay, partial indemnity costs in the amount of $41,752.08;

(b) on the motion to discharge, partial indemnity costs in the amount of $23,378.70;

(c) on the motion to add the TIC as a Third Party, partial indemnity costs in the amount of $12,746.88;

(d) costs of subsequent attendances in the amount of $1,750.00; and

(e) preparation of these written cost submissions in the amount of $2,500.00.

The above-referenced partial indemnity costs total $82,127.66.”

[19] As directed by me, ACT delivered its submissions first and indicated that counsel anticipated being provided with a document reflecting the rule 57.01 procedure:

“ACT's expectation is that OHL/FCC will produce copies of its costs outlines prepared in February and March of 2013 in response to ACT's cost submissions. Those cost outlines, ACT assumes, set out the costs OHL/FCC would have sought if successful on their motions. By extension, therefore, those costs are what OHL/FCC should have expected to pay if unsuccessful.”

[20] The relevant portions of that rule read:

Bill of Costs

(5) After a trial, the hearing of a motion that disposes of a proceeding or the hearing of an application, a party who is awarded costs shall serve a bill of costs (Form 57A) on the other parties and shall file it, with proof of service.

Costs Outline

(6) Unless the parties have agreed on the costs that it would be appropriate to award for a step in a proceeding, every party who intends to seek costs for that step shall give to every other party involved in the same step, and bring to the hearing, a costs outline (Form 57B) not exceeding three pages in length. (3).

Process for Fixing Costs

(7) The court shall devise and adopt the simplest, least expensive and most expeditious process for fixing costs and, without limiting the generality of the foregoing, costs may be fixed after receiving written submissions, without the attendance of the parties.

[21] Had OHL/FCC been successful in establishing that the lien of ACT was not validly preserved than Sub-rule (5) might well have applied they would be required to deliver a bill of costs. Here on the motions which were clearly steps within this proceeding OHL/FCC chose not to deliver any cost outline at the hearings nor as part of their written submissions with respect to

[22] The failure to deliver that information in my view does not contribute to what might otherwise be the most expeditious process for fixing costs.

[23] In this case the parties had previously been involved in interlocutory motions before coming before me. The results of those matters provide the current assessment with additional contextual assistance in determining an appropriate costs award. The written submissions of ACT observe:

“Numerous issues were raised by OHL/FCC on each motion. In particular, OHL/FCC's attempt to discharge ACT's lien strikes at the very heart of ACT's right to payment for the work which it performed, and serious consequences to ACT would have resulted if OHL/FCC's motion had succeeded.

On other motions in these proceedings, OHL/FCC's partial indemnity costs have ranged from 1.5 to 2.0 times those sought by ACT, and therefore it is our submission that all the costs sought herein are reasonable. For example, ACT sought costs between $4,969 and $6,368.96 on a motion in June 2013, which OHL/ FCC sought costs ranging from $11,493.24 to $22,238.41 for the same motion. ACT was ultimately awarded costs of $5,187.58 by Master Sandler. Similarly, on a single Rule 21 motion before a judge in June 2013 substantially shorter in duration, focused in its scope, and no cross examinations, OHL was successful and sought substantial indemnity costs of $24,876.02, and partial indemnity costs of $16,728.72. OHL was awarded $15,000 all-inclusive, (ACT's responding partial indemnity costs being $11,700.00) ….

Regard was therefore had to the indemnity principle and what the unsuccessful party could expect to pay, and ACT was ordered to pay more costs than it would have asked for as a result of what OHL claimed. The Rule 57 principles of indemnity and quantum expectation should apply here to award ACT at minimum $80,377.66 in costs (its motion costs, plus the costs of preparing these written submissions).”

[24] Counsel for OHL/FCC, despite refusing to provide no costs outlines instead sought from ACT copies of each individual docket or account rendered by counsel. If my view this was inappropriate in what is directed to be a summary process. It refusing that request I felt that it would be needlessly time-consuming, and unnecessary in the face of the signed certificate of counsel certifying that the amounts accurately reflect the time spent.

[25] Similarly I did not find helpful objections as to the amount sought by ECT for binding and tab charges with respect to what amounted to almost 40 volumes of produced materials.

V. Key Motion Issues

[26] OHL unsuccessfully sought to discharge ACT’s lien. The importance of this motion in the result sought is addressed in ACT’s submissions:

“Each basis for OHL/FCC's motion to discharge (relating to there being no alleged "owner", that there was a railway right-of-way in place and that the lien is unenforceable on public policy grounds) was rejected by the court:

• The court specifically found OHL/FCC's position that ACT's claim for lien should be dismissed for reasons of public policy to be "unfounded, necessary and would be unjust and improper in the circumstances, and, if accepted, would in effect defeat the public policy objectives of the Construction Lien Act”;

• OHL/FCC's assertion that ACT has no enforceable lien rights because there is no "owner" of the property was rejected by the Court and found to be a "surprising assertion" that a party having done work to improve lands has no potentially enforceable lien rights and moreover that there can be "no question" that York has an interest in the improved lands.”

[27] I believe there is merit in the submission made to me that a motion to discharge a lien is akin to a motion for summary judgment. On such a motion an unsuccessful party risks an adverse costs award on a substantial indemnity basis. ACT’s counsel thus argues that, in the absence of an award of substantial indemnity costs, ACT should be awarded its full partial indemnity costs.

VI. Responding Position

[28] In its submissions in response OHL asserts that rates claimed by ACT are “excessive and unreasonable”:

“Generally, the rates claimed by ACT are excessive and unreasonable as partial-indemnity rates in construction lien actions. The recent decision of Master Albert in Thyssenkrupp Elevator (Canada) Ltd. v. 1147335 Ontario Inc., 2013 ONSC 2452, [23 C.L.R. (4th) 87; 227 A.C.W.S. (3d) 347; 2013 CarswellOnt 4792] provides detailed and considered guidance with respect to costs awards in construction lien actions. Master Albert commented on the rates provided for in the former costs grid (more recently updated in the Information for the Profession bulleting issued by the Costs Subcommittee of the Civil Rules Committee as of July 1, 2005). Master Albert noted at paragraphs 45-46 that these maximum rates are “applied to the most complex and important of cases” and “require a slight adjustment to reflect rates reasonably charged for a construction lien proceeding of this type and complexity." It is noteworthy that the proceedings in issue involved a complex trial of five related lien actions.”

[29] OHL then addresses each of the three component motions. In the first of these partial extracts with respect the motion to stay the lien action due to an arbitration provision in the parties’ agreement I have underlined the amounts proposed to assist in comparisons:

“Motion to Stay

If this were a single motion, instead of being one of three motions, then the $41,752.08 in costs claimed by ACT would be considered to be unreasonable and excessive in the circumstances. For the reasons set out below, we propose a costs award of $16,504.80.

First, Mr. Heal has claimed nearly 16 hours of time, and Ms. DiMarco nearly 4, for "Background work, preparation and exchange of correspondence and ongoing file management." This claim includes the" exchange of correspondence with counsel for Monir Precision Monitoring Inc.," the "consideration of possible arbitrators," unspecified "consideration of issues surrounding motion," and "ongoing strategy and client communication," none of which is properly recoverable, in our view. Monir was not a party to the motion and any correspondence with them is irrelevant to the disposition of the motion. OHL/FCC should under no circumstances be responsible for ACT's costs in "considering" possible arbitrators, when it was not even determined that there would be an arbitration. Nor should OHL/FCC be held to account for unparticularized "consideration" of issues on the motion, or for Heal & Co.' s ongoing communications with its client. In our submission this portion of ACT's costs claim ought to be disallowed altogether. At the very least, these costs are grossly excessive, and no more than $1000 ought to be recoverable on a partial-indemnity basis for costs largely unrelated to the motion itself.

With respect to ACT's claim for "Material Used on Motion," it is clear that this matter was significantly overstaffed. It is unreasonable for ACT to claim significant amounts of time for four partners (Mr. Heal, Mr. Winsor, Ms. DiMarco and Mr. Farace) on a single motion. In particular, the claim of 21.5 hours of Mr. Winsor's time is excessive and unreasonable, particularly given his lack of participation in the cross-examinations and the motion. Mr. Winsor was called to the bar in 1975, and his biography on Blaney McMurtry's website discloses no particular expertise or experience with respect to construction law. Accordingly, while it might be reasonable to expect that Mr. Winsor would provide his input as an experienced civil advocate, the claim for 21.5 hours is grossly excessive. Given the input of two partners who were well-versed in construction law (Mr. Heal and Ms. DiMarco), Mr. Winsor's role should have been relatively minor. It is noteworthy that Michael Farace, who was called to the bar in 1989, spent 4.7 hours on this file, presumably in the same sort of consulting/supervisory role. It is submitted that the claim in respect of Mr. Winsor's time ought to be of the same magnitude at Mr. Farace's time - and that both should be reduced to two hours. OHL/FCC is being asked to indemnify ACT for the work of two senior lawyers who did not attend either at the cross-examinations or on the motion; if these claims are to be allowed at all, they must be proportionate to their proper role on the file.”

Included in ACT's claim for "Material Used on Motion" is time spent on "preparation of arbitration agreement", in circumstances where the ACT Subcontract already contained a submission to arbitration. In our view, this claim is improper, and has nothing to do with the preparation of motion material. The issue on the motion was precisely whether the matter should be referred to arbitration. Until the motion was decided, counsel should not have been spending time preparing an arbitration agreement, and in any event those costs ought not to be recoverable as against OHL/FCC. Because we do not have the benefit of seeing ACT's detailed dockets, we do not know precisely how much time was spent on this. It is one of nine items listed under the heading "Material Used on Motion." Two of these nine items are identical - "preparation of supplementary affidavit" - and one - "research" - will have been undertaken by students, leaving seven unique items on which the lawyers will have spent their time. Accordingly, we suggest a deduction of 1/7th of the time claimed under this heading for Mr. Heal, Ms. DiMarco and Mr. De Luca.

With respect to research, 62 hours of student time is claimed for this motion. This is an obviously excessive amount to claim in respect of the motion to stay. While the students may have spent that amount of time as a learning exercise for their own benefit, it is unreasonable to expect OHL/FCC to indemnify ACT for what was essentially training time for Mr. Heal's firm. In our submission, 20 hours of student time on this matter would be more than reasonable.

Finally, the claimed disbursements for photocopying and fax and courier fees are excessive. It is submitted that they ought to be reduced by $500.”

[30] Frankly this degree of parsing and analysis (with or without the full dockets) is excessive and not of much assistance. Counsel attest to the time having been spent. I am not of the view that the 2005 tariffs have any ongoing binding effect and that the best comparator would have been the actual time spent and the amounts charged to their client by the objecting party which information was not placed before me.

[31] On the second motion relating to the attempt to have the lien discharged as improper, similar responding submissions were made. These abbreviated extracts address the quantum question:

“Motion to Discharge

If this were a single motion, instead of being one of three motions, then the $23,833.52 in costs claimed by ACT would be considered to be unreasonable and excessive in the circumstances. For the reasons set out below, we propose a costs award of $15,515.90.

This claim is again broken down into "Background work, preparation and exchange of correspondence and ongoing file management" and "Material used on motion." The first of these items again includes "exchange of correspondence with counsel for Monir Precision Monitoring Inc." These amounts are plainly unrecoverable.

Moreover, a claim of $4,326 on a partial-indemnity basis for "Background work, preparation and exchange of correspondence and ongoing file management" is clearly excessive and unreasonable. By way of comparison, the recent decision of Master Albert in 1269016 Ontario Ltd. v. Ellis, 2013 ONSC 2185, fixed a total fee award for an entire trial of a construction lien matter at $10,000. For ACT to claim nearly half that for background work, correspondence and general file management on a single motion - excluding preparation of motion materials, cross-examinations or attendance on the motion - is patently unreasonable. It is submitted that a reasonable partial-indemnity recovery of these costs is $1000.

With respect to the time claimed for "Material Used on Motion," OHL/FCC does not object to the number of hours claimed, but, as above, does object to the excessive rates claimed on a partial-indemnity basis.

Similarly, the claimed disbursements are excessive. Notably, the claimed photocopying fees are over $1,800, a clearly excessive amount on a single motion, and more than twice those claimed in respect of the motion to stay. Similarly, the Agent's Fees, at almost $700, are more than twice those claimed in respect of the motion to stay. It is submitted that the claimed disbursements ought to be reduced by $500.”

[32] The third motion related to an attempt to add The Toronto Transit Commission as a third party in a lien action. The TTC was not a party to the arbitration agreement between the parties with the result that they could not be forced to participate in an arbitration. If the TTC were added, ACT could well face difficulties in attempting to proceed with an arbitration in a circumstance where all the parties were not at the table. OHL”s submissions with respect to the costs associated these issues read in part:

“Motion to Add TTC as a Third Party

If this were a single motion, instead of being one of three motions, then the $15,021.06 in costs claimed by ACT would be considered to be unreasonable and excessive in the circumstances. For the reasons set out below, we propose a costs award of $4,520.

The costs claimed by ACT on this motion are particularly unreasonable. ACT claims more legal costs in respect of a simple motion to add a third party than is typically awarded following an entire trial of a construction lien action, as noted above.

The scale of the imbalance in costs awards sought on this motion is evident on the face of the Court's reasons. The reasons for judgment dealt with three motions, and encompassed 48 pages. Of those 48 pages, only two were devoted to the issue of leave to issue a third party claim. A costs award should be proportional to the substance of the issue before the Court.

As with the other motions, reference must be made to the usual quantum granted by courts on these types of motions. In The Pickering Harbour Co. Ltd. v. Barton, 2007 4021 (ON SC), [2007] 85 O.R. (3d) 526 (Sup. Ct. J.), Clark J. fixed costs on a motion for leave to add a third party claim. The defendant, which had been successful on its earlier motion for leave, sought costs of $5,368 as against the plaintiff. In considering the quantum claimed by the defendant, the Court stated at paragraph 18, "I must bear in mind, of course, that the overriding principle in determining an appropriate award for costs is not what counsel is entitled to charge his or her client, but, rather, what is a reasonable amount from the perspective of the losing party." The Court cited several authorities in support of this proposition, and went on to state, "While the amount sought by the defendant is not unreasonably high, viewing the matter from the aforementioned perspective, I am of the opinion that a more appropriate amount would be $3,500." By way of comparison, ACT's claim for costs is more than four times what the court awarded in The Pickering Harbour.

ACT's claim for costs in respect of the leave motion again claims for exchange of correspondence between Heal & Co. and ACT, unparticularized "consideration" of issues, strategy and position, and" communication and file management," none of which is properly recoverable as part of the cost of the motion.

In respect of the motion itself, which falls under "Preparation of Pleadings," excessive time is billed for the attendance on the motion (3 hours, when the argument of the leave motion took considerably less time than that). Excessive time (10 hours) is also billed for student research into a relatively straightforward legal issue.

Once again, the claimed disbursements are excessive. It is difficult to understand how nearly $2,300 can be claimed in disbursements alone in respect of such a relatively straightforward motion. The claim for disbursements is 2/3 of the entire costs award granted by the Court in The Pickering Harbour. Disbursements ought to be reasonable and proportionate to the total amount claimed.”

[33] It is submitted by OHL that a costs award of no greater than $4,000 plus HST (a total of $4,520), is appropriate in the circumstances. It is asserted that:

“A greater costs award, on a partial-indemnity basis, takes the costs claimed well outside of any reasonable expectation or precedent on a motion of this type. In our submission, this is true regardless of the time actually spent by ACT's counsel on this motion.”

[34] I disagree. Without a benchmark of what was spent by the complaining party and no other evidence of OHL’s actual expectation as to the costs of the motion, the court is left with what was spent on what I, at least, regarded as a meaningful motion.

VII. ACT Reply on Costs

[35] I found many of the submissions in reply to the opposition to the bill of costs to resonate with my evaluations in this case.

[36] With respect to the TTC third party motion costs submissions ACT’s counsel observes:

“OHL/FCC continues to refuse to disclose its partial indemnity costs, or what it actually paid for the same legal work on the motions. It delivered no Form 57B, despite Rule 57.01(6), which provides that every party shall give every other party a costs outline. OHL/FCC sought costs on a substantial indemnity basis (in its notice of motion and factum attacking the ACT lien) and "costs, if opposed" (not specifying the scale) in relation to its notice of motion and factum to add the TTC, but never produced any costs outlines.

On OHL/FCC's unsuccessful motion to add the TIC as a third party, OHL/FCC submits (without producing its own costs in evidence) that a cost award of $4,250 is appropriate. Those submissions, however, fail to account for the costs ACT was forced to incur in, among other things, reviewing OHL/FCC's motion record, OHL/FCC's supplementary motion record and 26-page factum (on what OHL/FCC asserts is a "relatively straightforward legal issue" when submitting on p.6 that 10 hours of student research by ACT was "excessive"), preparing a responding affidavit, drafting a factum and examining a representative of the TTC.

Costs in the amount of $4,250 are clearly inadequate when measured against any reasonable standard, and particularly in circumstances where, throughout the preparation for the motion and the arguing of the motion itself, OHL/FCC failed to disclose to ACT and to the Court that OHL/FCC's claims against the TTC are tolled by contract. In other words, the entire motion was unnecessary, since OHL/FCC always had the right to seek contribution from the TTC at some later date. On that basis alone, contrary to the submissions of OHL/FCC, ACT should be awarded its costs in their entirety.”

[37] I also adopt their submissions on two issues. In particular I agree that the cases relied upon in the OHL/FCC's responding cost submissions are distinguishable and do not support any significant reduction in the partial indemnity costs sought. In particular:

• “In Thyssenkrupp Elevator 2013 ONSC 2452 (Master Albert), the Court did not consider the rationale of Justice Smith in First Capital v. North American 2012 ONSC 1359 that the decade old costs grid is now dated and should not be mechanistically applied to complex cases. However, Master Albert did reference the need for proportionality. In Thyssenkrupp the successful party sought costs of $119,947.23 where it actually recovered only $122,810.30 after trial. In other words, the costs sought were about 100% of the judgment amount. Nonetheless, Master Albert's reasons then carefully explained why it would be just to award costs close to 75% of the judgment amount. Here OHL/FCC sought to avoid arbitration of a $13 million claim by ACT (under a subcontract which OHL/FCC drafted and which required all disputes under the subcontract to be submitted to arbitration), to discharge ACT's $4.1 million dollar lien, and to needlessly involve the TIC in this case. ACT seeks costs in the amount of $82,127.866, which, given the stakes, are costs clearly in line with Master Albert's award of costs of $78,107.90 in Thyssenkrupp.”

[38] As well I accept the submission that OHL/FCC's request to parse the ACT bill of costs line by line "is contrary to the direction of the Rules and the caselaw":

• “Justice Morgan in Heydary Hamilton v. Mohammad et al [2013] OJ No. 4565 at para. 11, and again citing Justice Henry in Apotex v. Egis Pharmaceuticals (1991) 1991 2729 (ON SC), 4 O.R. (3d) 321 at 326 that "a court in fixing costs is engaged in a task that is 'not an assessment item by item' ”. Parsing a bill of costs is unhelpful where the party opposite has failed to produce its own outline for meaningful comparison. Further, such failure can only be deliberate, and deprives the court of the Rule 57.01(1)(0.b) information: Gerger Mechanical v. Salvarinas 2012 ONSC 6682 (Justice Campbell) at para, 6 and 7.”

[39] ACT ultimately submits that:

“OHL/FCC has substituted its views and opinions of ACT's costs instead of providing an objective, substantive, and supportable basis for its criticisms. Its responding costs submissions describe ACT's costs as "unreasonable", then "patently unreasonable", then "particularly unreasonable", and then "grossly excessive" and "plainly unrecoverable", all without providing a substantive grounding for those submissions -and in the absence of their own costs outlines which would ground a fair assessment of what a loser would expect to pay.

ACT submits that this Court should draw an adverse inference from OHL/FCC's deliberate refusal to provide its costs outlines. This Court can, and should, reasonably conclude that OHL/FCC expected to pay partial indemnity costs in an amount equal to, or greater than, those submitted by ACT. ACT submits that its costs sought on these motions are appreciably less than the costs OHL/FCC would have sought, had it been successful on the three motions. This submission is supported by OHL/FCC's refusal to provide its costs outlines.”

VIII. Disposition

[40] In addition to its costs on the motions, ACT claims $1,750 in respect of "subsequent attendances", and $2,500 in respect of its own costs submissions. OHL submitted:

“The Court has not ordered any such costs, and ACT's attempt to claim costs not ordered is improper and ought to be disallowed altogether.”

[41] I am not satisfied that the subsequent attendances merited additional costs but I regard an allowance for preparing meaningful costs submissions in a case such as this as both the usual and a correct approach.

[42] Master Albert in Thyssenkrupp addresses the correct approach to determining cost in a lien matter:

“11. Rule 57.01(1) describes relevant factors for the court to consider. To the extent that any of the relevant factors fetter the discretion of the court under section 86 of the Construction Lien Act, the Act takes priority (see: section 67(3)).

12. The list of relevant factors is non-exhaustive and includes (i) whether the conduct of any party shortened or unnecessarily lengthened the duration of the proceeding, (ii) indemnification, (iii) reasonable expectation of the payor, (iv) the amount claimed and recovered, (v) the complexity of the proceeding, (vi) the importance of the issues, and (vii) whether any step taken was unnecessary, improper, vexatious or taken by mistake or through negligence or excessive caution. Additional considerations include rule 49 offers to settle and proportionality.”

[43] I have considered the relevant factors and determined an appropriate costs award in this case.

[44] Fixing of costs is not a science nor is it intended to be as specific an exercise as an assessment. All of the relevant factors in Rule 57.01 may be considered but in this case the most significant are the principles of indemnity on the one hand and reasonable expectation on the other. I have already commented on the significance of the motions which obviously justified the parties in taking them seriously and expending the necessary time and effort in preparation.

[45] In a case where there is no meaningful costs outline filed by the objecting party, it would seem appropriate in most circumstances to no reduce the amounts claimed as there is no real evidence of a lower expectation of the costs to be incurred.

[46] I fix the costs of these motions, on a partial indemnity scale at $77,877.66 plus $2500, being in total $80,377.66. This amount is inclusive of disbursements and HST and shall be payable within 30 days.

[47] I am obliged to all counsel for their patience and for their oral and written submissions throughout this matter

Master D. E. Short

DATE: June 20, 2014

DS/ R.70