SUPERIOR COURT OF JUSTICE - ONTARIO

CITATION: PRIMO PAVING & CONSTRUCTION LTD. v. PRUDENTIAL ELFA MANAGEMENT GROUP INC., 2015 ONSC 327

COURT FILE NO.: CV-11-433120

MOTION HEARD: DECEMBER 2, 2014

RE: Primo Paving & Construction Ltd.

v.

Prudential Elfa Management Group Inc.

BEFORE: MASTER R.A. MUIR

COUNSEL: Brendan D. Bowles and Jay Nathwani, counsel to the lawyer for the plaintiff

Ritchie J. Linton for the defendant and the proposed substituted defendants

SUPPLEMENTARY REASONS - COSTS

[1] On December 2, 2014 I heard a motion brought by the plaintiff seeking leave to amend its statement of claim in order to substitute two new defendants in place of the existing defendant on the basis of misnomer. I released my reasons for decision on December 10, 2014. I granted the relief requested by the plaintiff and asked for written costs submissions. I have now reviewed and considered those costs submissions.

[2] Both sides seek costs. The plaintiff takes the position that it was successful and should receive its costs in accordance with the customary practice in this court. The plaintiff argues that the opposition to its motion was unreasonable.

[3] The defendant and the proposed substituted defendants submit that this is one of those rare situations where the unsuccessful parties should be awarded their costs. They argue that the plaintiff has been afforded an indulgence and that this motion was necessitated by a lack of diligence on the part of the plaintiff and its lawyer when this action was commenced.

[4] In my view, it is fair and reasonable that there be no order with respect to the costs of this motion. As I stated at paragraph 22 of my December 10, 2014 reasons for decision “the root of the difficulty presented by this motion is the fact that Alves [the principal of the defendant and the proposed substituted defendants] was mistakenly operating a business using the name of a non-existent entity”. However, it is also true, as I noted at paragraph 29 of my reasons, that the plaintiff’s lawyer failed to carry out even the most basic corporate or real estate searches before issuing the statement of claim. Had he done so, he would have known that the named defendant did not exist and did not own the property on which the plaintiff’s work was carried out.

[5] In my view, both sides bear roughly equal responsibility for this state of affairs. I therefore order that there be no order with respect to the costs of this motion.

Master R.A. Muir

DATE: January 16, 2015