Court File and Parties

COURT FILE NO.: 98-CV-142944 DATE: 20160428 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Awaiting Developments Inc. Plaintiff – and – Durham Region Non-Profit Housing Corporation and the Regional Municipality of Durham Defendants

COUNSEL: Alan J. Davis, for the Plaintiff Andrew J. Heal, for the Defendant, Durham Region Non-Profit Housing Corporation

HEARD: April 20, 2016

MORGAN J.

I. Nature of the proceeding

[1] In the early 1990s, the Plaintiff sold land and developed a housing project for the Defendants. After completion of the project an accounting battle ensued.

[2] The main issues in the action have now settled. One of the Defendants, Regional Municipality of Durham, has been released entirely. The Plaintiff and the remaining Defendant, Durham Region Non-Profit Housing Corporation (the “Defendant”), entered into Minutes of Settlement at a pre-trial conference on January 7, 2015.

[3] Under the Minutes of Settlement, the Defendant has cleaned up the principal amount of its debt to the Plaintiff with a payment of $146,300. What remains in issue is a filmy residue of interest and costs.

[4] The matter came before Diamond J. in motions court on August 10, 2015. Although counsel for both parties would have been content to proceed on the basis of a written evidentiary record, their presentation of the complexity and depth of the dispute, in particular over interest rates, managed to persuade Justice Diamond that a mini-trial of the issues was required.

II. The Construction Contract and architect fees

[5] The principal of the Plaintiff is Dr. Harry Weingarten, who is a practicing dentist as well as a real estate investor/developer. He was involved in every aspect of the transaction in issue, and testified for the Plaintiff as its sole witness. For a man who waited 22 years to get a bill paid, he was remarkably calm and thorough in his recollection of the details of the transaction. He testified that during the life of the project – from 1991 to 1994 – he needed to keep getting installment payments from the Defendant for the ongoing construction work; accordingly, when one bill to the Defendant went overdue Dr. Weingarten could not, in effect, stop treating the patient until the balance was paid. He sued after completion of the project.

[6] The Statement of Claim was issued in 1998. The dispute relates to the Construction Contract between the Plaintiff and Defendant negotiated in the fall of 1991 and dated October 1, 1991. The parties treated that as the starting date of the contract, although the Construction Contract was formally signed by them some months later, on February 20, 1992.

[7] As indicated above, pursuant to Minutes of Settlement the Defendant has paid the Plaintiff $146,300. The question at hand is whether this $146,300 was payable by the Defendant under the Construction Contract, or was payable by the Defendant outside of its obligations under the Construction Contract. If it was payable under the Construction Contract, the contractually agreed interest rate applies to pre-judgment interest; if was payable other than under the Construction Contract, the standard Courts of Justice Act rate applies. The former is substantially higher over the relevant years than the latter. Although I was not provided with the precise numbers, counsel advise me that the difference between these interest rates over the roughly two decades could amount to several hundred thousand dollars.

[8] In the Minutes of Settlement, the $146,300 is expressly divided into two portions: $116,00 attributable to architect fees initially paid by the Plaintiff to the Kirshenblatt Korman Associates architecture firm and now reimbursed by the Defendant, and $30,300 attributable to miscellaneous other expenses related to the construction project and now paid by the Defendant. The great majority of the hearing, including both evidence and argument, was devoted to the $116,000 portion. I will do the same, and will address this amount first.

[9] As I read the Minutes, the parties specifically agreed that the $116,000 paid by the Defendant is attributable to architect fees. What they did not agree on was whether those fees were payable by the Defendant under the Construction Contract or through some other source of obligation. The Minutes expressly state that this apportionment between architect fees and other expenses is without prejudice to the Plaintiff’s right to argue that the architect fees were payable by the Defendant under the Construction Contract. As I have already indicated, this argument is made in support of the Plaintiff’s claim for the contract rate of interest on the settlement funds.

[10] In order to make this doubly clear, Plaintiff’s counsel opened the hearing before me with a motion to formally amend the existing Amended Statement of Claim to include reference to article A-4(c) of the Construction Contract. That clause sets out the contract rate of interest.

[11] The claim for interest under the Construction Contract was, in fact, already pleaded in paragraph 22 of the Amended Statement of Claim. There is, strictly speaking, no real need to amend the pleading at this stage, but Plaintiff’s counsel has put it forward for greater certainty. As he points out, the amendment does not take anyone by surprise; counsel for the Defendant concedes that it was understood that the Plaintiff would be making this post-settlement argument about the contract rate of interest. Since it does no harm to be certain about what is pleaded, the amendment to the claim should be granted: see Robert McAlpine Ltd v Woodbine Place Inc, [1998] OJ No 2518, at para 7.

[12] The Construction Contract was what the parties call a “modified turnkey” agreement. The Plaintiff conveyed land to the Defendant and agreed to construct a project comprised of some 60 townhomes. The entire deal cost the Defendant $1,500,000 for the land and a fixed price of $6,449,918, subject to change orders, for the construction. The construction price is set out in Art. A-3 of the Construction Contract, which provides:

The Contract Price is $6,449,918 in Canadian funds, which price shall be subject to adjustments as may be required by Owner generated Change Orders as approved by the Ministry of Housing. This Contract Price includes all applicable taxes.

[13] The Defendant’s position is that the $116,000 is part and parcel of the fixed contract price. Counsel for the Defendant points out that on the statements summarizing the draws that the Defendant paid the Plaintiff during the life of the project there are specific line items that show what was covered in each installment, and that a number of these installments specify architect fees along with other subcontractors, municipal permit fees, etc.

[14] The Plaintiff’s position is that the $116,000 was outside of the scope of the fixed price under the Construction Contract. Plaintiff’s counsel and Dr. Weingarten both point out that the itemization of the draws was for the Defendant’s internal purposes which it produced in order to justify each stage of funding it received from the regional municipality.

[15] The Plaintiff also says that much of the architectural work was done after the contract was already signed and in response to the Defendant’s own specifications. The Plaintiff’s reading of the contract is that while the architect worked for the Plaintiff at the initial states, once the work began the Construction Contract provided that the architect became a consultant for the Defendant. The Plaintiff argues that after that point, the Defendant should have paid the architect directly.

[16] The Amended Statement of Claim asserts that, “It was an express or implied term of the construction contract that the owner was responsible for retaining a consultant as its representative to create the plans and specifications for the contract documents, supervise the Project and administer the contract documents.” At least at first blush, this is counter-intuitive. That is, when the Construction Contract was drafted in October 1991, the Plaintiff had already retained the architects for this project. The Plaintiff itself has made an exhibit of its retainer agreement with Kirshenblatt Korman Associates, which is dated April 26, 1991 – some six months before the date of the contract.

[17] Dr. Weingarten testified that the Plaintiff paid the architects for the initial plans on which the Plaintiff’s bid for the project were based, but that after a certain point he should have stopped making those payments because the architects became the Defendant’s consultant. He says that he made a mistake by having the Plaintiff continued to pay the architects, thus giving rise to the claim for reimbursement.

[18] I pause only to observe that if that is the case, then the architects must have made the very same mistake. The record shows that Kirshenblatt Korman Associates only ever invoiced the Plaintiff, and appear to have never invoiced the Defendant.

[19] Dr. Weingarten may be right about the Defendant having to pay the architects directly. I also observe that the record does contain a number of pieces of correspondence from the Defendant’s personnel to Kirshenblatt Korman containing instructions for revision of the architectural drawings. Several of those letters go out of their way to remind Kirshenblatt Korman that under the Construction Contract their firm is consultant for the Defendant. The architects appear to have acted on these instructions from the Defendant although, as indicated, their bills went to the Plaintiff.

[20] Alternatively, Dr. Weingarten may be wrong about the Defendant having to pay the architects directly, but still be right that the contract called for the Defendant to reimburse the Plaintiff for the fees it paid the architects over and above the fees for the initial plans. In that case, the Defendant would be responsible for the architects’ fees in the same way as it was responsible for any other revisions or extras that were over and above the fixed-price for construction. That is, the $116,000 in unpaid architect fees could represent extra architectural work done in respect of change orders. Under article A-3 of the Construction Contract, the cost of these cosmetic implants not included in the original set of plans was payable by the Defendant to the Plaintiff.

[21] In that way, the $116,000 portion of the settlement funds relating to architect fees may be seen as the final reimbursement to the Plaintiff – more than 20 years after completion of the project – of fees paid that were payable under the Construction Contract. One way or another, the Plaintiff says that the Defendant was obliged to pay the architect fees – either as extra payments relating to change orders or as reimbursement to the Plaintiff of amounts that the Defendant should have paid directly to the architects for their consulting services. Under either of those routes, the $116,000 is payable by the Defendant to the Plaintiff under the Construction Contract. There is no other source of obligation or legal relationship between the two parties.

[22] Turning next to the Defendant’s position, it is perhaps not surprising that its pleading is diametrically opposed to the Plaintiff’s. The Amended Statement of Defense asserts that, “Consulting, engineering, and architectural services were included in the Contract price and were paid to the Plaintiff with each progress payment.” It contends that such an arrangement is in the very nature of a fixed-price, turnkey contract.

[23] The Defendant supports this position by pointing to the fact that the installment payments made along the way to the Plaintiff came with a notation that specifically stated that they included architect fees. The Defendant also relies on the fact that the Kirshenblatt Korman retainer letter was with the Plaintiff and not the Defendant, and that the Plaintiff submitted architectural plans at the very outset of the project in 1991, before is proposal was even accepted by the Defendant, and so obviously hired the architects on its own.

[24] Furthermore, counsel for the Defendant points to an accounting statement dated January 24, 1994, which was provided to the Defendant by Dr. Weingarten the same week that the architects issued their certificate of total completion for the construction project. This statement itemizes “Architect” as one of the amounts paid by the Defendant under the Construction Contract.

[25] Counsel for the Plaintiff responds by stating that the figures shown as architect fees on the Defendant’s itemized installment list were based on its own internal formula, and not on Kirshenblatt Korman’s actual fees. Dr. Weingarten contends that the same is true of the use of the word “Architect” on the Plaintiff’s statement of January 24, 1994, which he says mimicked the Defendant’s use of the term. Plaintiff’s counsel submits that this establishes that the fee amounts shown on these statements were just an artificial or notional breakdown that the Defendant used in recording the installment payments it was making.

[26] Plaintiff’s counsel further points out that given that the Construction Contract was a fixed-price contract, the Defendant’s internal calculations really did not matter to the Plaintiff. Dr. Weingarten said as much himself. He testified that it was his understanding that the line item notations that came with each installment payment were of no moment to him, since they were strictly for the purposes of the Defendant’s reportage to its funder, the Regional Municipality of Durham.

[27] It is noteworthy that the respective positions of the parties owe much to the way the action was framed and defended prior to the Minutes of Settlement. The Plaintiff spent much of the life of the action seeking to establish that the Defendant was obliged under the contract to pay it the architect fees, while the Defendant spent much of the life of the action seeking to establish that the Plaintiff was responsible to the architect for these fees and that the Plaintiff itself had already been paid as part of the fixed-price contract.

[28] Those arguments are now at an end. The parties have settled the payment dispute. The Defendant has paid the Plaintiff, inter alia, $116,000 in relating to architect fees as part of its obligations under the Minutes of Settlement.

[29] Now that the dispute is restricted to the applicable interest rate, the Defendant’s argument has effectively reversed. The Defendant seeks to establish that it would at most be the standard Courts of Justice Act interest rate that pertains to the recent payment of architect fees, and in support of that point contends that those fees were not payable as part of the Construction Contract. In order to avoid the more onerous contract rate of interest, Defendant’s counsel must argue that the $116,000 in architect fees were somehow paid separate and apart from the Defendant’s obligations under that contract.

[30] I understand why Defendant’s counsel makes the legal argument that he makes, but I do not know how the Defendant and its personnel who were involved in the the Construction Contract and the project actually viewed the architect payments. Unlike the Plaintiff, the Defendant did not produce any witness with first-hand knowledge. The Defendant’s sole witness was Karen Whibley, a law clerk from the office of Defendant’s legal counsel.

[31] While I take no issue with much of what Ms. Whibley said in her affidavit and live testimony – the documents and correspondence that she identified as exhibits are doubtless really those documents and letters, etc. – she does not know what the Defendants were thinking when these documents were negotiated, drafted, and signed. Plaintiff’s counsel made this abundantly clear to the court in his cross-examination of her. Unlike Dr. Weingarten’s testimony, which was relatively painless and firmly rooted in his knowledge of the actual transactions that took place in the early 1990s, Ms. Whibley’s cross-examination was an extraction without Novocain.

[32] I commend Ms. Whibley for honesty – for example, she was forthright enough to concede that she swore her affidavit without having actually read the entire Construction Contract. But it was painful to see a law clerk from Defendant’s counsel’s office put up as Defendant’s sole viva voce witness, and attempt to explain past events in which she was not involved. Her approach was to superficially look at the same documents that everyone else can look at, and to then tell the court what she thought they meant.

[33] When asked why she is the Defendant’s only witness rather than a person actually from the Defendant organization, Ms. Whibley indicated that there was not enough time to obtain the evidence from the Defendant’s own personnel. It is hard for me to fathom why there would have been a shortage of time. This is one of the most protracted pieces of litigation one can imagine; sometime between 1998 and 2016 – or, perhaps more fairly, between the settlement in January 2015 and the commencement of this hearing in April 2016 – the Defendant must have been able to come up with an actual first-hand witness. I do not exactly fault Ms. Whibley for this; she was trying to be a good soldier. But it is my view that her testimony is proffered by the Defendant not in order to shed light on the Defendant’s position, but to shield the Defendant from having to be questioned too closely on its position.

[34] At one point in her testimony, Ms. Whibley indicated that the Defendant had its own internal reasons for agreeing to pay the $116,000 in settlement funds earmarked for architect fees, and that this might not be related to any contractual obligation. She does not say what those reasons are, of course, because she cannot; she is from the law firm, not the client. This comment took me by surprise. Indeed, it seemed to come out of nowhere, like a foreign object or plaque lodged between her already wobbly bits of knowledge. If anything, it accentuated my perception that the Defendant’s entire evidentiary case amounted to advocacy, not evidence.

[35] On March 6, 1992, while construction was ongoing, Dr. Weingarten sent a letter to the Defendant requesting that architect fees be paid as the Plaintiff was already out-of-pocket in respect of those fees. In reply, he received a letter from the Defendant also dated March 6, 1992. In that letter, the Defendant advised Dr. Weingarten that, “architectural services and building permit fees are part of the Construction Contract and will be paid during the construction phase.”

[36] In his testimony, Dr. Weingarten said that he understands this letter to mean what it says – i.e. that from the Defendant’s point of view, the architect fees are part of the Construction Contract. In her testimony, Ms. Whibley said that she does not understand this letter to mean what it says. Although she was the Defendant’s sole witness, she could not say what the Defendant actually thought it meant since, again, she is not an employee or otherwise a part of the Defendant’s organization but rather is a clerk in Defendant’s litigation counsel’s office.

[37] In my view, the Defendant in fact stated its real understanding of the situation in its Amended Statement of Defense. The Defendant pleaded, in an emphatic way and without qualification, that the architect fees were payable under the Construction Contract. Needless to say, that makes the interest rate for late payment of the amount earmarked for those fees also payable as set out in the Construction Contract.

III. Calculating interest and costs

[38] It is this contract rate that is applicable as pre-judgment interest. The contract rate of interest is therefore payable by the Defendant under s. 128(4)(g) of the Courts of Justice Act as pre-judgment interest “payable by a right other than under this section.”

[39] That interest rate is governed by article A-4(c) of the Construction Contract, which provides:

If the [Defendant] fails to make payments to the [Plaintiff] as they become due under the terms of this Contract or in an award by arbitration or court, interest of Prime Plus Two percent (Prime Plus 2%) per annum on such unpaid amounts shall also become due and payable until payment. Such interest shall be calculated and added to any unpaid amounts monthly.

[40] Although it is common knowledge, it is worth noting that the phrase “prime” is generally understood to mean “the rate published by Canadian Charter banks as the most favourable rate charged to creditworthy customers”: Hanil Bank Canada v Gill Construction Ltd, [1992] OJ No 134. Although this rate may vary slightly from financial institution to financial institution, the meaning of “prime” indisputably refers to generally published rates: Coldmatic Refrigeration of Canada v 1234777 Ont. Inc, 2004 CarswellOnt 474.

[41] The Plaintiff has produced a chart from the Bank of Canada Common Data and Statistics Office entitled “Chartered Bank Administered Interest Rates – Prime Business”. This chart contains the prime rates over the past number of years, including those relevant to the present dispute. The Defendant accepted this chart as reflecting the prime rate when it made late payments during the life of the contract, and does not appear to take issue with the chart now (although, of course, it disputes its liability for the contract interest rate).

[42] The payment of $116,000 was made by the Defendant to the Plaintiff this week – on April 19, 2016. The question is: when did the prime plus 2% rate begin to run?

[43] Counsel for the Plaintiff stated at the outset of the hearing that it could be one of three dates: a) the date of total performance, being January 7, 1994; b) the date of the first demand for payment, being April 2, 1996; or c) the date of the Statement of Claim, being March 4, 1998. Obviously, the counsel for the Plaintiff prefers the earliest of these dates.

[44] The Defendant submits that little or no pre-judgment interest should be payable. Counsel for the Defendant contends that the Plaintiff caused much of the delay in the action in that it failed to adequately advance the matter. Since the pre-judgment interest has accumulated as a result of the long delay in payment, the Defendant’s position is that the Plaintiff is the responsible party.

[45] The position taken by the Defendant assumes that pre-judgment interest is a kind of punishment for delay, and that if a party does not deserve to be punished it should not have to pay interest. However, that is not how the courts conceive of pre-judgment interest: see Graham v Rourke (1990), 75 OR (2d) 622, paras 20-21. Interest is compensatory, not punitive, and represents the time value of money: Bank of America Canada v Clarica Trust Co, 2002 SCC 43, [2002] 2 SCR 601, paras 36-38. If a payment is made two decades after it came due, the payee is owed the lost value of its money over the years. Interest is a reflection of the sheer passage of time, and does not speak to who caused the passage of time.

[46] The Plaintiff’s specific demand for reimbursement of architect fees was first set out in a letter from Dr. Weingarten dated January 7, 1994. In that letter, the Plaintiff expressed what became its position in the Statement of Claim – i.e. that the Defendant should have paid the architectural firm directly but, since the fees had already been paid by the Plaintiff, the Defendant should reimburse the Plaintiff for those fees. As I have already indicated, it is my view that the Plaintiff was indeed entitled to payment, either because the Construction Contract required the Defendant to pay those fees directly to its consultant architect but they were paid by the Plaintiff in error, or because the fees represented extra work ordered by the Defendant over and above the fixed-price contract amount. Either way, the fees were payable to the Plaintiff by the Defendant under the Construction Contract.

[47] Accordingly, the repayment of architect fees set out by Dr. Weingarten in his January 7, 1994 letter was, one way or another, rightly requested. Since at least January 7, 1994, it was obvious to the Defendant that there were outstanding architect fees that it had to pay and that were overdue.

[48] I therefore take January 7, 1994 as the date from which pre-judgment interest begins to run. The Plaintiff is entitled to interest on $116,000 at the rate of prime plus 2% from January 7, 1994 until April 19, 2016 – i.e. the date on which I am advised by counsel that the Defendant actually delivered to the Plaintiff a cheque representing the settlement funds.

[49] Turning to the balance of $30,300 in settlement funds, there is no evidence that allows me to determine what that payment relates to. Counsel for the Plaintiff concedes that it could relate to payments owing by the Defendant under the Construction Contract or to payments owed by the Defendant to the Plaintiff for matters not arising under the Construction Contract. It could equally be part one source and part the other, with no way of knowing what percentage of the $30,300 relates to what source.

[50] All of the Plaintiff’s claims were set out in a lengthy letter from Dr. Weingarten to the Defendant dated April 2, 1996, and so that should be the starting point for interest running on these miscellaneous claims. However, there is no way to determine the source of the Defendant’s obligation to pay these claims other than the fact that this was the dollar figure that the parties chose in reaching a compromise resolution of the matter.

[51] The claim by the Plaintiff is that the settlement attracts the contractually stipulated rate of interest from the date the claims arose until the date of payment. The onus of proof of this claim is, of course, on the Plaintiff.

[52] The Plaintiff has succeeded in proving that the $116,000 relates to payments owed by the Defendant to the Plaintiff under the Construction Contract. It has not succeeded in establishing on a balance of probabilities that all or any portion of the $30,300 relates to payments owed under the Construction Contract. Accordingly, pre-judgment interest on the $30,300 is not at the contract rate, but rather is at the standard Courts of Justice Act rate for the relevant period, from April 2, 1996 until April 19, 2016.

[53] Finally, turning to costs, from the inception of the action in 1998 to the settlement on January 7, 2015, the Plaintiff seeks payment of $95,000 (using round numbers) inclusive of fees, disbursements, and tax. Upon review of Plaintiff’s counsel’s dockets and the productions by his predecessor on this file, it is evident that this amount is quite reasonable. In fact, Defendant’s counsel’s Bill of Costs shows more than this amount – some $108,000 – in fees, disbursements, and tax being requested on a partial indemnity basis from 2011 (when present counsel took over the file) until Jan. 7, 2015. The Defendant cannot have been taken by surprise by Plaintiff’s counsel’s bill, and it would be hard for the Defendant to complain about a legal bill that is lower than its own.

[54] Defendant’s counsel submits that the protracted nature of the action is the result of the Plaintiff’s tardiness, and his client should not have to pay extra costs for the many lost years. He explains that at one stage the action was administratively dismissed, and had to be reinstated by the Plaintiff on a motion. Defendant’s counsel submits that while one might expect a Defendant not to be anxious to proceed with a law suit against it, a Plaintiff can and should be expected to push the action forward.

[55] It is true that over the years Dr. Weingarten and his legal team appear to have chewed up this case with grinders rather than incisors. That said, the Defendant and its legal team have also not exactly operated on this case with a high speed drill.

[56] Plaintiff’s counsel points out that it was only in late 2014 – some 16 years after commencement of the action and 20 years after the relevant events – that the Defendant produced relevant statements from the CIBC that allowed the other major issue in the Plaintiff’s claim to be cleared up. That issue had to do with credits and deductions the Defendant allegedly made from the contract payments to the Plaintiff, based on mortgage interest it was being charged by CIBC. Once the bank documents were produced, it became clear that the Plaintiff had no mortgage interest claim and it was abandoned at the settlement conference in January 2015.

[57] The award of costs is discretionary under section 131 of the Courts of Justice Act. The court is required to consider what is “fair and reasonable” in fixing costs, having regard to the reasonable expectations of the parties: Boucher v Public Accountants Council (Ontario), (2004), 71 OR (3d) 291, at paras 26, 38 (Ont CA). Given tardiness on both sides, I am not inclined to deduct anything from the Plaintiff’s request due to the longevity of the action. If the Defendant had been so confident in its case and so anxious to bring it to a close, it could have sought summary judgment at any time or moved to compel the matter to be brought to trial. It took no such step, but rather let the matter languish.

[58] Defendant’s counsel submits that since the Plaintiff ultimately abandoned its mortgage interest claim, it was only partially successful in reaching the final settlement of its action. Rule 57.01(1)(a) of the Rules of Civil Procedure provides that I can take into account “the amount claimed and the amount recovered in the proceeding”, and Defendant’s counsel urges me to do so on the basis that the Plaintiff settled for part recovery rather than for full recovery.

[59] I confess that I do not fully understand the mortgage interest portion of the Plaintiff’s original claim. It was already settled before this matter came before me and so was never argued. In fact, when I asked about it out of curiosity at the hearing, both lawyers were reluctant to expound at any length as it was a complicated accounting matter that would take a long time to explain and that had no particular relevance to the interest rate and costs issues that were left open by the Minutes of Settlement and that are before me.

[60] What I do know about the mortgage interest part of this action is that it took years for the Defendant to properly respond to the Plaintiff’s desire for an accounting, and that as soon as the Defendant produced the relevant bank documentation the Plaintiff dropped that part of its claim. The Plaintiff appears to have sought a reasonable explanation for a complicated accounting matter arising under the Construction Contract; the mortgage interest portion of this action does not appear to have been in the nature of a specious claim pursued by the Plaintiff for which it should be penalized in costs.

[61] As for the parties’ costs from the settlement date up to and including the hearing before me, I see no reason not to award the Plaintiff a rounded-off version of its costs on a partial indemnity scale. It was entirely successful in this proceeding, and its counsel’s time and effort was well invested in a successful hearing.

[62] Again, the two sides are not far apart in the cost requests they submitted to me in respect of this hearing and procedures since January 2015. Plaintiff’s counsel seeks $61,739.00, all inclusive; Defendant’s counsel seeks $51,544.62, all inclusive. Defendant’s counsel spent just over $51,000 to prepare for and conduct a trial without having to prepare and review the matter with an independent witness. His only witness was his law clerk, making crafting the affidavit evidence and formulating the legal argument really all one process. Plaintiff’s counsel, on the other hand, spent just over $61,000 to prepare for and conduct a trial after having to prepare and review the matter with an actual, first-hand witness who was not part of his legal team. Under the circumstances, the small disparity in fees sought by Plaintiff’s counsel as opposed to Defendant’s counsel should take no one by surprise.

IV. Disposition

[63] The Amended Statement of Claim is further amended to include reference to the contract rate of interest, as set out in the Plaintiff’s Notice of Motion dated April 19, 2016.

[64] The Defendant shall pay the Plaintiff pre-judgment interest on $116,000 from January 7, 1994 until April 19, 2016 at the rate stipulated in A-4(c) of the Construction Contract (i.e. prime plus 2%). The “prime” rate of interest shall be established for that purpose by having reference to the relevant time period and rates found in the Bank of Canada Common Data and Statistics document entitled “Chartered Bank Administered Interest Rates – Prime Business”. If any amount of the $116,000 or interest thereon remains outstanding, this same rate shall continue as post-judgment interest.

[65] The Defendant shall pay the Plaintiff interest on $30,300 from April 2, 1996 until April 19, 2016 at the standard Courts of Justice Act rate applicable to pre-judgment interest. If any amount of the $30,300 or interest thereon remains outstanding, the standard Courts of Justice Act rate for post-judgment interest applies.

[66] The Defendant shall pay the Plaintiff costs in the amount of $95,000 + $61,000, for a total of $156,000, inclusive of fees, disbursements, and tax, from the inception of this action until today. Post-judgment interest on any unpaid costs will run at the standard Courts of Justice Act rate.

Morgan J.

Released: April 28, 2016

Reasons for Judgment

COURT FILE NO.: 98-CV-142944 DATE: 20160428 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Awaiting Developments Inc. Plaintiff – and – Durham Region Non-Profit Housing Corporation and the Regional Municipality of Durham Defendants

REASONS FOR JUDGMENT Morgan J. Released: April 28, 2016