Court File and Parties

COURT FILE NO.: CV-422406-A2
DATE: 2014-12-22
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 1731393 Ontario Ltd., operating as Thomkess Crane Rentals / Plaintiff

AND:

Robert Strmota, All Season Homes Ltd., All Bins Inc., Joe Colavita o/a Hyland Rentals; Joe Colavita o/a JC Repair & Rentals Ltd., Royal Bailiff Service Inc., and Ontario Legal Recovery Ltd. / Defendants

AND:

Richard Hammond and Alex Flesias / Third Parties

BEFORE: Justice Edward P. Belobaba

COUNSEL: Richard Campbell for Ontario Legal Recovery Ltd. / Moving Party

Edward Burlew for 1731393 Ontario Ltd., o/a Thomkess Crane Rentals / Responding Party

HEARD: August 13 and 29, 2014

costs award – Strmota defendants

[1] In a decision released on September 3, 2014[^1] I dismissed the motion for summary judgment brought by Ontario Legal Recovery (“OLR”), a provincially-licenced bailiff. I was not persuaded that a bailiff that seizes property from a person and place not named in a court-issued writ of seizure comes within the protection of s. 142 of the Courts of Justice Act.[^2] I concluded that the claims against OLR should proceed to trial and I awarded the plaintiff, Thomkess Crane Rentals, $14,000 in costs payable forthwith by OLR.[^3]

[2] Three of the other defendants, Robert Strmota, All Season Homes Ltd. and All Bins Inc., (“the Strmota Defendants”) now ask for a costs award in their favour. They say they were obliged to participate fully in this motion, not just in response to OLR but also because OLR, within its motion record, was repeating and relying on the claims that Thomkess had made against the Strmota Defendants in the action.

[3] The Strmota Defendants ask for costs on a partial indemnity basis in the amount of $8894 inclusive of disbursements and HST. OLR says that the motion as against the Strmota Defendants was “exceedingly narrow” and did not require anywhere near the extent of participation or preparation on the part of counsel for these defendants. OLR also questions a number of items in the costs outline, such as the attendance at the cross-examination of OLR; the time spent on the responding material; and certain disbursements. OLR asks that costs as between these parties be deferred to the trial judge.

[4] In their reply submission, the Strmota Defendants explain in some detail why their participation was required on a much broader level than that suggested by OLR. They rebut most of the criticisms that were directed at the contents of their costs outline and they take issue with the OLR suggestion that costs should be deferred to the trial judge. They point out that there are no longer any claims as between them and OLR (based on the balance of the consent order dated August 29, 2014.)

[5] I am persuaded by the submissions of the Strmota Defendants that costs should not be deferred. In my view, it is fair and reasonable to fix the Strmota Defendants’ costs at $6000 all-inclusive, payable by OLR forthwith.

[6] Order to go accordingly.

Belobaba J.

Date: December 22, 2014

[^1]: 1731393 Ontario Ltd. v. Strmota et al, 2014 ONSC 5062.

[^2]: R.S.O. 1990, c. C.43, as amended. Section 142 of the Act provides statutory immunity for any act that is “done in good faith in accordance with an order or process of a court in Ontario.”

[^3]: 1731393 Ontario Ltd. v. Strmota et al, 2014 ONSC 5314.