COURT FILE AND PARTIES

COURT FILE NO.: 14-45379

DATE: 2014-08-01

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: RAMCO INSTALLATIONS LTD., Plaintiff

AND:

MOMETAL STRUCTURES INC., ARRIGO CICCARELLI and JOSEPH CICCIARELLI, Defendants

BEFORE: THE HONOURABLE MR. JUSTICE REID

COUNSEL:
R. Allan, Counsel, for the Plaintiff

M. Tweedie, Counsel, for the Defendants

HEARD: June 10, 2014, with subsequent written costs submissions

COSTS ENDORSEMENT

[1] The plaintiff brought two motions that were argued together. The first was for an order requiring the defendants to answer the plaintiff’s demand for particulars and to provide an accounting. The second was for an order imposing a discovery plan or timetable.

[2] The plaintiff was entirely successful on the first motion, and partially successful on the second. In the second motion, some parts of the requested relief, namely the preservation of documents and the exchange of affidavits of documents were ordered. The issue of the timetable was deferred until after the hearing of an August 7 motion in Kingston involving the same parties in a separate action in which consolidation of the two claims is being requested.

[3] The parties were unable to agree on the issue of costs and accepted the invitation to provide written submissions.

[4] It is conceded by the respondents that the plaintiff is entitled to an award of costs based on its success.

[5] The first issue for determination is the scale of costs to be applied. The plaintiff seeks costs on a substantial indemnity basis and the defendants submit that a partial indemnity basis is appropriate.

[6] There are no aspects of the matter, including the conduct of the parties, that would lead to a substantial indemnity award with the possible exception of the making of an offer to settle.

[7] The plaintiff relies on an email communication of May 16, 2014 to the defendant in which the plaintiff offered to resolve the first motion on the basis that answers to the demand for particulars with accompanying documents related to the request to inspect would be provided within seven days and that the requested accounting would be produced within 15 days. There was no mention of costs, although the implication in saying that the matter would be “resolved” is that there would be no order as to costs.

[8] The terms of my endorsement dated June 17, 2014 in the first motion where that the defendant must provide answers to the Demand for Particulars and Request to Admit served March 13, 2014 and an accounting of trust funds as requested in the plaintiff’s letter to the defendants dated March 12, 2014 on or before July 16, 2014.

[9] The May 16 email proposed terms that were close to those of my order. The proposed time for compliance was shorter than in the order and the order made no mention of documents related to a request to inspect. The offer did not indicate that it would be open for acceptance for any specific length of time. It was made four days prior to the return date of the motion on Tuesday, May 20 although the motion was ultimately adjourned for hearing on June 10.

[10] I conclude that the terms of the order were not as favourable or more favorable than the terms of the offer such that the plaintiff is entitled to substantial indemnity costs. However, I am entitled to consider the offer, which was by definition a reasonable one, in making my decision on costs.

[11] There were no offers as regards the second motion.

[12] In exercising my discretion as to costs found in section 131 of the Courts of Justice Act[^1], I am guided by the factors set out in rule 57.01 of the Rules of Civil Procedure[^2].

[13] In addition to the result of the motions, I have considered that the issues was not particularly complex and where of a procedural nature. It was important to the plaintiff to require the plaintiff to preserve documents and to secure the affidavit of documents. It was also important to the plaintiff to receive an answer to the demand for particulars and an accounting of trust funds in order to proceed expeditiously with the action.

[14] I note that the matter was adjourned from May 20 to June 10 for the specific purpose of allowing the defendants to file responding materials on the motions and to cross examine the plaintiff. The defendants chose not to take either of those actions, preferring to argue on June 10 for a further adjournment deferring the consideration of substantive relief until after the August 7 motion in Kingston. Arguably, the adjournment from May 10 was a step that unnecessarily lengthened the duration of the proceeding. Finally, I have considered that these defendants who are engaged in the construction business, and in defending a construction claim are sophisticated enough to appreciate that an unsuccessful party could reasonably be expected to pay costs to the successful party in a reasonable amount.

[15] The plaintiff submits that on a partial indemnity scale, inclusive of HST and disbursements, a reasonable award would be in the amount of $4715.93 for the first motion and $1166.60 for the second motion. The total claim is $5882.53.

[16] Counsel for the defendant has questioned the hourly rates claimed by counsel for the plaintiff and challenges the amount of time spent. I see no indication that the hourly rates attributed to counsel are unreasonable.

[17] Counsel for the defendant has also submitted that the time charged in preparation for the motions was excessive at 14.75 lawyer hours and 3.5 paralegal hours. However, no corresponding bill of costs or other indication of the time spent by counsel for the defendants was filed to show a comparison and I am not able to conclude that the time charged was unreasonable.

[18] As noted above, I am entitled to consider the offer to settle which was made by the plaintiff and the actions of the defendants prior to the motion hearing. Neither of those considerations lead me to conclude that the costs claimed by the plaintiff on a partial indemnity basis should be reduced.

[19] As a result, there will be an order of costs payable by the defendants to the plaintiff on a partial indemnity basis in the all-inclusive amount of $5882.53, payable within 30 days.

Reid J.

Date: August 1, 2014

[^1]: R.S.O. 1990, c.C.43

[^2]: RRO 1990, Reg. 194