Citation: Bentivoglio v. Le Groupe Brigil Construction, 2016 ONSC 2307
COURT FILE NO.: CV-12-55057A2
DATE: 2016-03-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MICHAEL STEVEN BENTIVOGLIO O/A MIKE’S HEATING, AIR CONDITIONING & GENERAL CONTRACTING
The Plaintiff, not represented
Plaintiff
- and -
LE GROUPE BRIGIL CONSTRUCTION, a Division of 6095186 CANADA INC., 3223701 CANADA INC., and CAISSE DESJARDINS DE HULL
Stephane Hutt and Michel Sicotte, for the Defendants, Le Groupe Brigil Construction, a Division of 6095186 Canada Inc., 3223701 Canada Inc.
Defendants
The Defendants, Caisse Desjardins De Hull, not represented
- and -
GENIVAR INC.
James Brown, for the Third Party
Third Party
- and -
MASTRON MECHANICAL CONTRACTING LIMITED, MASTRON MECHANICAL CONTRACTING (1988) LIMITED, SJDM HOLDINGS LTD. and MICHAEL STEVEN BENTIVOGLIO O/A MIKE’S HEATING, AIR CONDITIONING & GENERAL CONTRACTING
Craig O’Brien and Kyle Stout, for Mastron Mechanical Contracting Limited, Mastron Mechanical Contracting (1988) Limited and SJDM Holding Ltd.
Fourth Party, Mike’s Heating, not represented.
Fourth Parties
HEARD: Via Written Submissions
Mr. Justice W.D. Newton
Decision On Costs
Introduction
[1] In my reasons on this motion released February 18, 2016, I concluded that the moving party, Genivar, had acquiesced to the third party claim brought by Brigil and that the order of Hackland J. had “saved” the third party claim. Consequently, Genivar was unsuccessful in its motion to have Brigil’s third party claim dismissed.
[2] Mastron was unsuccessful in having Genivar’s fourth party claim against it struck because I concluded that the effect of the Hackland J. order was to convert this Construction Lien action to the “ordinary track”.
[3] I have received costs submissions from all parties. Brigil, which was completely successful, seeks costs of between $8,000 and $10,000 on either a partial indemnity or a substantial indemnity scale based on approximately 60 hours of counsel time. Mastron, which was unsuccessful, seeks costs of between $18,000 and $25,000 on either a partial indemnity or substantial indemnity scale based on approximately 107 hours of counsel time. Genivar, which was partially successful, seeks between $5,500 and $8,000 on either a partial indemnity or substantial indemnity scale based on approximately 30 hours of counsel time.
[4] For the reasons that follow I conclude that Genivar should pay costs to both Brigil and Mastron although for different reasons and in different amounts.
Costs – General Principles
[5] Rule 57.01(1) of the Rules of Civil Procedure provides:
“57.01 (1) Factors in discretion - In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing, (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 on any party that tended to shorten or 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 (ii) In defending a proceeding separated unnecessarily from another party in the same interest or defended by a different solicitor; and (i) any other matter relevant to the question of costs.”
[6] Rule 1.04 (1.1) of the Rules of Civil Procedure provides:
1.04 (1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
[7] In Serra v. Serra (2009), 2009 ONCA 395, 66 R.F.L. (6th) 40 (Ont. C.A.), at p. 42, the Court of Appeal reiterated the fundamental purposes which modern costs rules are designed to foster, as set out in Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (Ont. C.A.), at para. 22:
(1) to partially indemnify successful litigants for the costs of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour.
[8] An award of costs is a matter in the discretion of the court by virtue of s. 131(1) of the Courts of Justice Act. The overriding principle is one of reasonableness. Costs should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party rather than a mathematical calculation of time spent or the rates charged by the successful party’s lawyer. See Zesta Engineering v. Cloutier, 2002 CanLII 25577 (ON CA), [2002] O.J. No. 4495 (C.A.), at para. 4.
Costs payable by Genivar to Brigil
[9] Given the conduct of Genivar and the clear order of Hackland J., it is apparent that Genivar only advanced the position that Brigil’s third party claim was invalid to save itself from Mastron’s fourth party claim.
[10] Although dealing with procedural irregularities, this motion was not complex. In the circumstances, I conclude that the appropriate award of costs is $6,500 for fees and disbursements plus HST. This represents approximately 35 hours of counsel time at a substantial indemnity rate of $184 per hour. The substantial indemnity scale is appropriate given Genivar’s improper and inappropriate position with respect to Brigil’s third party claim.
Costs payable by Genivar to Mastron
[11] Although unsuccessful, I conclude that Mastron is entitled to some indemnification for its costs. The consent filed by Genivar which purports to legitimize the fourth party claim is, on its face, inaccurate and misleading. As I said in my reasons, I do not condone the conduct of Genivar in attempting to shelter the fourth party claim under the Hackland order. In hindsight, it would have been appropriate to seek clarification that the Hackland J. order transferred this action to the “ordinary track”. I note that the fourth party claim was issued at the “11th hour”. But for Genivar’s conduct in the manner of issuing this fourth party claim this motion may not have been necessary. However, I cannot conclude that over 100 hours is reasonable and appropriate for motion of this sort. In the circumstances, I fix the costs payable by Genivar to Mastron in the amount of $3500 for fees and disbursements plus HST.
“Original signed by”____
The Hon. Mr. Justice W.D. Newton
[12]
Released: April 5, 2016
CITATION: Bentivoglio v. Le Groupe Brigil Construction, 2016 ONSC 2307
COURT FILE NO.: CV-12-55057A2
DATE: 2016-03-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MICHAEL STEVEN BENTIVOGLIO O/A MIKE’S HEATING, AIR CONDITIONING & GENERAL CONTRACTING
Plaintiff
- and -
LE GROUPE BRIGIL CONSTRUCTION, a Division of 6095186 CANADA INC., 3223701 CANADA INC., and CAISSE DESJARDINS DE HULL
Defendants
- and -
GENIVAR INC.
Third Party
- and -
MASTRON MECHANICAL CONTRACTING LIMITED, MASTRON MECHANICAL CONTRACTING (1988) LIMITED, SJDM HOLDINGS LTD. and MICHAEL STEVEN BENTIVOGLIO O/A MIKE’S HEATING, AIR CONDITIONING & GENERAL CONTRACTING
Fourth Parties
DECISION ON COSTS
Newton J.
Released: April 5, 2016
/mls