BARRIE COURT FILE NO.: CV-13-0699-00

DATE: 20150713

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

TOTAL METER SERVICES INC.

Plaintiff

– and –

APLUS GENERAL CONTRACTORS CORP.

Defendant

W.R. MacDougall, for the Plaintiff

L. Wise, for the Defendant

HEARD: By Written Submissions

COSTS ENDORSEMENT

QUINLAN J.

Overview

[1] The plaintiff sought partial summary judgment against the defendant in relation to the withholding of monies by the defendant for outstanding documentation, a delay claim and a back-charge claim. The plaintiff was successful on the delay claim portion of the motion. I dismissed the balance of the plaintiff’s motion for summary judgment and directed a trial of an issue with respect to the remaining issues in the action.

[2] The parties have provided written submissions on the issue of costs.

Positions of the Parties

Position of the Plaintiff

[3] The plaintiff seeks 50% of its costs on the motion, calculated on a partial indemnity basis in the amount of $15,572.23 and asks that the balance of the costs of the motion be reserved to the trial judge. The plaintiff submits that the defendant should not be awarded costs for reasons set out in the plaintiff’s reply submissions, including that the defendant’s offers should not attract Rule 49 cost consequences. The defendant did not “beat” any offers: the offers were premised on prior delivery of documents and what documentation, if any, is outstanding remains an issue for trial, therefore the “offers” lack the requisite certainty for an Offer to Settle. In addition, the defendant did not offer to dismiss the delay claim and therefore any offer was not superior to the relief granted. The delay claim was a significant issue and the most complicated of the defendant’s defences so its dismissal will save significant resources for the parties and the court. Much of the “work product” created on the motion will reduce the extent of future discovery. The plaintiff also seeks compound interest on the amount awarded for the delay claim.

The Defendant’s Position

[4] The defendant seeks its costs on either a substantial indemnity basis in the amount of $40,000 or on a partial indemnity basis in the amount $29,874.82. The defendant submits that the plaintiff should not receive an award of costs given its limited success and 50% of the plaintiff’s costs should not be deferred to the trial judge. The plaintiff was predominately unsuccessful and fared worse than the Offer to Settle. The plaintiff’s actions in relation to the close-out documents were unreasonable and unnecessarily complicated and lengthened the motion. The delay claim issue was not factually complex. The plaintiff should not be rewarded for abandoning its weak claim for extras at the eleventh hour as the plaintiff should have known it would raise triable issues. The defendant opposes any request to limit or bar discovery. Compound interest was not sought in the Notice of Motion; such request is contrary to the plaintiff’s earlier position so should not be granted.

Legal Principles

[5] The award of costs is governed by s. 131 of the Courts of Justice Act, R.S.O. 1990 c. C. 43 and by Rule 57.01 of the Rules of Civil Procedure. Section 131 clothes the court with its general discretion to fix costs. Rule 57.01 provides a measure of guidance in the exercise of that discretion by enumerating certain factors that the court may consider when assessing costs.[^1]

[6] In particular, the court may consider any of the following factors:

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(iii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs. R.R.O. 1990, Reg. 194, r. 57.01 (1); O. Reg. 627/98, s. 6; O. Reg. 42/05, s. 4 (1); O. Reg. 575/07, s. 1.

[7] Ultimately, in fixing an amount for costs, the overriding principles are fairness and reasonableness.[^2]

Analysis

[8] There was divided success on the plaintiff’s summary judgment motion. The plaintiff was successful on the delay claim portion which was the least factually complex issue on the motion, considering the dearth of the defendant’s evidence to support such a claim. It was obvious that there had to be a trial of an issue with respect to some claims, especially in view of the abandonment by the plaintiff of certain back-charges before and during the motion. The plaintiff’s evidence was contradictory and not such that a court could fairly decide the issues on a summary judgment motion.

[9] The defendant did not fare better than the Offers to Settle. As such, the offers do not attract the cost consequences of Rule 49.

[10] Considering all of the relevant factors and the divided success of the parties, I find that neither party should be entitled to costs of the motion. No costs of the motion shall be reserved to the trial judge.

[11] I have not considered paras. 2 – 6 of the plaintiff’s Reply Submissions as they raise issues that did not arise out of the defendant’s responding submissions.

[12] The defendant is of the view that the plaintiff now seeks to raise the issue of discovery rights. I do not read the plaintiff’s submissions as making such a request. If that is the plaintiff’s intent, I find that it is not appropriate: the parties consented to an order that the action be set down for trial without prejudice to the discovery rights of the parties.

[13] Considering the plaintiff’s position on the motion on the applicability of the Prime Contract and its failure to raise the issue of compound interest in the motion materials, I do not find it would be appropriate to award compound interest on the monies held back by the defendant for its delay claim.

Conclusion

[14] There shall be no order as to costs payable by either party.

QUINLAN J.

Released: July 13, 2015

[^1]: Zandersod Company Limited v. Solmar Development Corp., 2011 ONSC 3874 at para. 11.

[^2]: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.); Moon v. Sher (2004), 2004 39005 (ON CA), 246 D.L.R. (4th) 440 (Ont. C.A.).