2015 ONSC 6811

COURT FILE NO.: CV-14-518776

DATE: 20151104

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: PCR CONTRACTORS INC., Plaintiff

AND:

WILSON STATION DEVELOPMENT CORPORATION, Defendant

BEFORE: Mr. Justice M. D. Faieta

COUNSEL: Paul Guaragna, for the Plaintiff

Ronald B. Moldaver Q.C., for the Defendant

COSTS ENDORSEMENT

[1] On October 15, 2015, I granted the plaintiff’s motion to refer this construction lien action to a master.

[2] The Plaintiff seeks its costs of $14,821.59, inclusive of HST, on a substantial indemnity basis or costs of $10,072.54 on a partial indemnity basis.

[3] The Defendant states that its costs on this motion were $9,833.96, inclusive of HST, for its “full” costs and were $4,703.96 on a partial indemnity basis. Given that partial indemnity costs are typically 60 percent of full costs, it is my view that the Defendant’s partial indemnity costs were $6,185.50. The Defendant submits that the Plaintiff should be awarded its costs of this motion in the amount of $3,500.00 inclusive of HST.

[4] In my view, costs on a substantial indemnity basis are not warranted as the Defendant’s conduct, in seeking an adjournment of this motion (even though Mr. Moldaver’s office had agreed to that date) in order to observe a religious holiday at the last minute was unfortunate but not reprehensible. The Plaintiff submitted an offer to settle this motion prior to its hearing on condition that its costs of $9,249.11 be paid. In my view, the outcome of this motion was not better than the Plaintiff’s offer.

[5] Further, this motion was not frivolous as it raised an issue that does not appear to have been considered by this Court for many years. I also accept the Defendant’s submission that there appears to have been some duplication in the work undertaken by the various lawyers retained by the Plaintiff. In all the circumstances, it is my view that it is fair and reasonable for the Defendant to pay costs in the amount of $7,500.00, inclusive of HST and disbursements, to the Plaintiff.

Mr. Justice M. D. Faieta

Date: November 4, 2015