ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 09-12855A2
DATE: 2014-07-28
B E T W E E N:
MCNALLY CONSTRUCTION INC.
Kenneth W. Movat.,
for the Plaintiff
Plaintiff
- and -
THE HAMILTON PORT AUTHORITY
Mark Abradjian,
for the Defendant
Defendant
- and –
GOLDER ASSOCIATES LTD.
Third Party
- and –
MAR-LAND ENGINEERING LIMITED
Fourth Party
P.John Brunner,
for the Third Party
No one appeared
for the Fourth Party
HEARD: February 26, 2014
COSTS RULING
[1] The matter before me was a summary judgment motion brought by the third party. What was sought, and granted, was dismissal of the third party claim. As a consequence of that dismissal, the fourth party claim was also dismissed.
[2] The third party seeks its costs from the defendant relative to the dismissed third party action, and also asks that, in effect, it be indemnified with respect to the costs which the third party under most circumstances would owe to the fourth party for the dismissed fourth party action.
[3] The plaintiff did not file any materials in respect of the third party’s summary judgment motion, but its counsel did attend and provide valuable confirmation of the plaintiff’s position relative to the third party’s expert report. That report, in simple terms, was the main subject matter of the third party claim.
[4] The defendant, as I understand its submissions on costs, asserts that the plaintiff is either entitled to no costs as a result of the summary judgment motion before me, or that the costs should be addressed when the main action is concluded, and that the costs of the dismissed third and fourth party action should either be paid by the plaintiffs or similarly be addressed at the end of the main action.
[5] A very brief outline of the underlying facts may be helpful at this point. The plaintiff is a contractor that undertook some on- and off-shore work for the harbour run by the defendant. The third party had done some on-shore bore hole testing for the defendant. The resulting report was provided by the defendant to the plaintiff as part of the tendering process.
[6] When the plaintiff commenced its work, it alleges that it encountered unexpected costs because the off-shore subsoil conditions proved to be different from the tested and reported upon on-shore conditions. The defendant commenced third party proceedings. The third party commenced fourth party proceedings, alleging that it was the fourth party which had decided and dictated the location of the bore holes in the first place.
[7] The defendant takes the position that the third (and fourth) party claims were started “as a consequence of the Statement of Claim and the plaintiff’s position on the accuracy of [the third party’s] report. Specifically paragraphs 8 and 14 of the Statement of Claim state that the plaintiff alleges that the... report was inaccurate.”
[8] The plaintiff disputes this, and says that it has been consistent in its assertion that it had no knowledge that the report was either false, inaccurate or misleading. What it criticizes is not the contents of the report but, rather, the alleged fact that the defendant had negligently asserted that the report was representative of the site conditions that would be encountered by the contractors over the entirety of the area where the work was to be done.
[9] I see no compelling reason for the plaintiff to either pay or be paid costs at this stage. The plaintiff did not commence either the third or fourth party actions. If the defendant started that chain reaction as a result of the plaintiff’s pleadings, as it alleges, then the costs ramifications as between the plaintiff and defendant of the summary judgment motion can be, and in my view should be, addressed with the trial judge hearing the main action.
[10] Similarly, the costs of the plaintiff’s limited participation in the third and fourth party actions, including the summary judgment motion, ought to be addressed in the same forum.
[11] I also see no compelling reason for the third and fourth parties to be obliged to wait around until the main action is tried or resolved in order to recover their costs. Those costs should be paid now by the defendant. As mentioned above, I believe that the defendant could still then argue for reimbursement as part of the costs being argued in the main action.
[12] The third and fourth parties are entitled to have their costs paid by the defendant at this point, both on the partial indemnity scale.
[13] The third party asserts that its costs, on that scale, are $49,850 for fees plus $7,828.54 for disbursements. The fourth party, again on that scale, asks for $15,503 in fees and $1,981.24 in disbursements.
[14] Taking the factors which I am obliged to consider under Rule 59.01 of the Rules of Civil Procedure and the fact that I should be more concerned with overall fairness and proportionality than with the arithmetic shown in the bills of costs as submitted, I fixed the costs of the third and fourth parties as follows:
The third party: fees of $40,000 plus HST, and disbursements of $7,828.54;
The fourth party: fees of $12,000 plus HST and disbursements of $1,981.24.
[15] While I have no difficulty with the hourly rates being claimed, I consider that some of the attendances are excessive in terms of the time spent, especially considering the seniority of the counsel involved. That said, this was not a simple case.
[16] So ordered.
Parayeski, J.
Released: July 28, 2014
COURT FILE NO.: 09-12855A2
DATE: 2014-07-28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MCNALLY CONSTRUCTION INC.
Plaintiff
- and -
THE HAMILTON PORT AUTHORITY
Defendant
- and –
GOLDER ASSOCIATES LTD.
Third Party
- and –
MAR-LAND ENGINEERING LIMITED
Fourth Party
COSTS RULING
MDP;co
Released: July 28, 2014