3072453 Nova Scotia Company v. 1623242 Ontario Inc., 2015 ONSC 5367
COURT FILE NO.: 640-13
DATE: 2015-08-26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
3072453 NOVA SCOTIA COMPANY
Plaintiff
Milton A. Davis and , Robert Macdonald for the Plaintiff and for the Defendants by Counterclaim
- and -
1623242 ONTARIO INC. and KRISHAN JUDGE
Gregory Govedaris, for the Defendants/Plaintiffs by Counterclaim
Defendants
A N D B E T W E E N:
1623242 ONTARIO INC. and KRISHAN JUDGE
Plaintiffs by Counterclaim
- and -
3072453 NOVA SCOTIA COMPANY and GREAT LAKES COPPER INC.
Defendants by Counterclaim
HEARD: December 12, 2014,
at Brampton, Ontario
Price J.
Costs Endorsement
[1] 1623242 Ontario Inc. (“162”) bought a property in Fergus from Wolverine Tube (Canada) Inc. (“Wolverine”) with a mortgage back from the purchaser, which Wolverine later assigned to 3072453 Nova Scotia Company (“307”). When the Ministry of the Environment (“the Ministry”) informed 162 that the property was contaminated with PCB’s and ordered 162 and Great Lakes Copper Inc. (“GLC”), a company associated with Wolverine, that was also Wolverine’s successor in title to the Fergus property, to remove the contamination, 162 refused. GLC then removed the contamination and registered two construction liens on the property, whereupon 162 stopped making payments on its mortgage, precipitating a foreclosure action by 307 against 162. 162 then sued Wolverine, 307, and Great Lakes Copper for fraud for failing to disclose that the property was contaminated and for trying to trick 167 into paying for the clean-up and then recovering the de-contaminated property by foreclosing. At 162’s request, the court ordered all four actions (307’s foreclosure action, GLC’s two construction lien actions and 162’s fraud action) to be tried together.
[2] After substantial legal costs had been incurred in the four actions, 162 demanded a mortgage discharge statement from 307, and sought leave to discharge or assign its mortgage by paying only the costs of the foreclosure action. 307 refused, taking the position that it was entitled to be paid the costs of all four actions before granting a discharge of the mortgage, so 162 moved for production of a discharge statement and the bill of costs of the foreclosure action alone, and for leave to discharge or assign the mortgage upon payment of the mortgage principle and interest and the costs of the foreclosure action alone. 307 then sought leave to discontinue the foreclosure action, apparently in order to avoid being forced to grant a discharge upon payment of only some of the costs that it (or the companies associated with it) had incurred.
[3] On April 1, 2015, the court dismissed 307’s motion to discontinue its foreclosure action because, by starting the action, 307 had caused 162 to incur the costs of defending itself and had triggered 162’s legal right to discharge the mortgage, which any mortgagor has upon being sued for foreclosure. The court granted 162 leave to discharge or assign its mortgage, but only upon payment of 307’s costs of not only the foreclosure action, but of the fraud action, since 307 had to defend itself on the fraud action in order to preserve its mortgage, and those costs were therefore recoverable as costs arising from the mortgage. The court held that 307 was not, however, entitled to insist on payment of any costs of the construction lien actions, as these were unrelated to the mortgage.
[4] 162 claims its costs of the motions in the amount of $37,805.91. 307 claims its costs of the motions in the amount of $53,763.14.
[5] Success on the motions being divided, there will be no order for costs.
Price J.
Released: August 26, 2015
CITATION: 30724453 Nova Scotia Company v. 1623242 Ontario Inc., 2015 ONSC 5367
COURT FILE NO.: 640-13
DATE: 2015-08-26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
3072453 NOVA SCOTIA COMPANY
Plaintiff
- and -
1623242 ONTARIO INC. and KRISHAN JUDGE
Defendants
A N D B E T W E E N:
1623242 ONTARIO INC. and KRISHAN JUDGE
Plaintiffs by Counterclaim
- and -
3072453 NOVA SCOTIA COMPANY and GREAT LAKES COPPER INC.
Defendants by Counterclaim
COSTS ENDORSEMENT
Price J.
Released: August 26, 2015