ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: 13-42058
Date: 2014-01-24
B E T W E E N:
JUCH-TECH INC.
C. Pye, for the Plaintiff
Plaintiff
- and -
EMPIRE COMMUNITIES (STONEY CREEK) LTD., BRANTFORD ENGINEERING AND CONSTRUCTION LTD. and CORPORATION OF THE CITY OF HAMILTON
R. Shastri, for Empire Communities (Stoney Creek) Ltd.
P. Amey and H.D. Alexander, for Brantford Engineering
G. Kuzyk, for the Corporation for the City of Hamilton
Defendants
COSTS RULING
PARAYESKI, J.
[1] On July 19, 2013, I dismissed the plaintiff’s motion to continue an interim injunction which it had obtained on an ex parte basis on July 2, 2013. At the end of my written reasons, I invited written submissions on the issue of costs in the event that the parties could not agree upon the same. They did not so agree, except to the extent that the defendant City of Hamilton has indicated that it is not seeking any costs.
[2] The successful party before me, primarily at least, was the defendant Empire Communities (Stoney Creek) Ltd. (“Empire”). In its costs submissions, it asks for either $31,373.38 on the substantial indemnity scale, or $20,397.92 on the partial indemnity scale.
[3] At the risk of oversimplification, the plaintiff’s arguments in response are:
that Empire should be denied some or all of its costs because of its “reprehensible” pre-litigation conduct; or
that if costs are to be awarded to Empire, the amounts being sought are excessive.
[4] The thrust of the plaintiff’s argument regarding the pre-litigation conduct of which it complains is that Empire allegedly did not respond to Juch-Tech’s “reasonable inquiries” about its proposed blasting. Juch-Tech addresses a further argument on this theme at paragraph 9 of its costs submissions, but that paragraph, as drafted, is unintelligible.
[5] Empire responds by saying that Juch-Tech refused to cooperate in the form of allowing Empire representatives to attend the subject property to ascertain what pre-emptive actions needed to be taken, if any, to safeguard Juch-Tech’s installations.
[6] The very limited evidence before me on this point (and the diametrically opposed interpretations being put on that evidence) leads me to conclude that it would be inappropriate for me to deviate from the norm of a successful party being entitled to costs. The case law provided to me indicates that discretion to deviate for pre-litigation conduct should be exercised narrowly. Empire is entitled to its costs.
[7] I am of the view that the appropriate scale of those costs is that of partial indemnity. While Juch-Tech lost, I am not persuaded that its conduct in seeking the injunction was “reprehensible” to the degree that warrants application of the higher scale as discussed in Newbould J.’s decision in Tegrad Windsor 1988 Inc. v. WW Lodging Inc. [2009] O.J. No. 3249.
[8] As for the amount of costs owed, I am satisfied that the full $20,397.92 is reasonable. It was, or should have been, within Juch-Tech’s expectation that responding to its injunction would require a fulsome, time-driven response. The stakes were high, as also must, or should have been, clear to Juch-Tech. Its ex-parte injunction stopped Empire’s development project in its tracks directly across the street from Juch-Tech’s property.
[9] Juch-Tech shall play Empire’s costs fixed at $20,397.92 all-inclusive within 60 days of this ruling.
Parayeski J.
Released: January 24, 2014
COURT FILE NO.: 13-42058
DATE: 2014-01-24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JUCH-TECH INC.
Plaintiff
- and –
EMPIRE COMMUNITIES (STONEY CREEK) LTD., BRANTFORD ENGINEERING AND CONSTRUCTION LTD. and CORPORATION OF THE CITY OF HAMILTON
Defendants
COSTS RULING
PARAYESKI, J.
MDP:mw
Released: January 24, 2014