Superior Court of Justice – Ontario
Master Dash
Actions:
- McColgan v. Nicol CV-12-463715
- Nicol v. Nortown CV-13-487961
- Piccolotto v. Nicol CV-14-502184
- Nicol v. Nortown CV-14-502184-00A1
Before: Master R. Dash
Counsel:
- Timothy Duncan, for the plaintiffs McColgan et al
- Jacquelyn Stevens, for the defendants Piccolotto
- John Burnes, for the defendant Nicol
- Iain Peck, for the defendants/third parties Nortown et al
Reasons for Decision
1On May 9, 2016 I dismissed a motion by the defendant/plaintiff Nicol for trial together of four actions (three actions and a third party claim), permitted trial together of two of the actions and a waiver of the deemed undertaking rule, for reasons to follow. These are the reasons. I reserved on the issue of costs. Costs are determined in this endorsement.
The McColgan Action and the Service Provider Action
2Nicol owns 175 Rumsey Road, Toronto (“175”). In 1981 he converted his heating from oil to natural gas and in 2005 had his underground oil tank removed. In June 2011 Nicol obtained an environmental assessment during the process of trying to sell his home and discovered that oil had contaminated the soil under 175 and had possibly spread into neighbouring properties. McColgan owns 173 Rumsey Rd. (“173”), the neighbouring property to the south of 175. In July 2012 it was confirmed that 173 was contaminated, although McColgan had been advised of the possibility in March 2012. McColgan commenced action CV-12-463715 against Nicol in September 2012 (the “173 Action”). On August 30, 2013 Nicol commenced action 13-487961 against the parties who did the gas conversion and the oil tank removal (the “Service Providers”) for damages to 175 as well as contribution and indemnity for damages to 173 (the “Service Provider Action”).
The First Nicol Motion for Trial Together and the Order of Master Muir
3In or about November 2013 Nicol served a motion to have the 173 Action heard together with the Service Provider Action or in the alternative to issue a late third party claim against the Service Providers. The motion was heard on March 25, 2014. In reasons released on March 26, 2014 Master Muir refused the motion on the basis that the initial requirements (sometimes referred to as the gateway criteria) of rule 6.01 were not met. He held that that there were no common issues of fact or law and that the two actions did not arise from the same transactions or occurrences. He stated that the issues in the 173 Action were narrow and discreet and would likely involve an assessment of the plaintiff’s damages (presumably because there is strict liability for the migration of the oil) whereas in the Service Provider Action, Nicol was seeking reimbursement of the damages he has to pay, which involves claims in contract and negligence against the Service Providers, who had no involvement with McColgan. He refused to permit a third party claim since the claims for indemnity would be identical to some of the claims advanced in the Service Provider Action. He found that McColgan would be seriously delayed and prejudiced by the much more complex proposed third party claim, which involved six additional parties and required evidence going back more than 30 years and would increase the length of trial and expense to McColgan. He noted that discoveries were completed in the 173 Action and it was ready to be set down for trial.
The Piccolotto Action and the Service Provider Third Party Claim
4The Piccolottos own 177 Rumsey Road (“177”), the neighbouring property to the north of 175. In 2012, as a result of testing by various experts, it appeared likely that 173 and 177 were both contaminated and that the contamination on all properties originated from the spill at 175 (although it became a certainty as a result of further testing in 2014 and 2015). The Piccolottos were contacted by Nicol’s insurers in May 2012, but after attempting to resolve the matter short of litigation, their lawyer advised Nicol’s lawyer on March 12, 2014 that an action would be commenced. The statement of claim was issued on April 14, 2014 as action CV-14-502184 (the “177 Action”). Following a lengthy waiver of defence, Nicol filed a statement of defence on September 29, 2015 and on the same day issued a third party claim against the Service Providers as action CV-14-502184-00A1 (the “Service Provider Third Party Claim”).
The Piccolotto Motion and the Second Nicol Motion for Trial Together
5The Piccolottos then sought a motion date to have the 173 Action and the 177 Action tried together. Master Haberman was assigned to hear the motion, but she decided that the Piccolottos needed to first move to sever the Service Provider Third Party Claim. A date for the severance motion was booked with a return date of May 27, 2016. The two motions by the Piccolottos were then overtaken by the motion ultimately booked before me. This was a motion by Nicol to have the 173 Action, the 177 Action, the Service Provider Action and the Service Provider Third Party Claim all tried together, or in the alternative to have the 173 Action and the 177 Action tried together and if necessary an order to set aside the order of Master Muir based on facts subsequently arising and discovered after Master Muir’s order. Nicol also sought an order that the deemed undertaking rule be waived as among the four actions, relief not contested by any party.
Res Judicata and Setting Aside the Order of Master Muir
6Clearly the issue of trial together of the 173 Action and the Service Provider Action is res judicata, having being determined by Master Muir and not appealed. The addition of the 177 action does not change this result. Master Muir decided that the action for oil migration from 175 to 173, a neighbouring property, (a strict liability claim) should not be tried with the contract/negligence action to determine the cause of and fault for the oil spill at 175. The 177 Action, also involving oil migration to another neighbouring property, and the Service Provider Third Party Claim involve identical issues to those decided by Master Muir.
7Nicol seeks to set aside Master Muir’s order under rule 59.06(2) on the basis of “facts arising or discovered after it was made.” The two-part test established by the case law under that rule requires the moving party to establish (1) that the “new” evidence would probably have changed or affected the result of the earlier motion and (2) that the evidence could not with reasonable diligence have been discovered earlier: Hall v. Powers (2005), 80 O.R. (3d) 462 (S.C.J.) at para. 12; DeGroote v. Canadian Imperial Bank of Commerce, [1999] O.J. No. 2313 (C.A.) at para 3.
8The fact that the Piccolottos started a claim or that oil had migrated to 177 was not discoverable only after the decision. Expert reports identified potential contamination on 177 as early as 2012 (although confirmed later) and on March 12, 2014, two weeks before the motion before Master Muir, Ms. Stevens, the lawyer for the Piccolottos sent a letter to Mr. Burnes, the lawyer for Nicol, to indicate her clients would be commencing an action. Although on March 24 Mr. Burnes forwarded the letter to Mr. Duncan, the lawyer for McColgan, with a suggestion that the additional litigation be heard with the current claims, he chose not to bring the Piccolotto claim to the attention of Master Muir, or to adjourn that motion to expand the relief claimed to include trial together of the pending 177 Action. In any event, as indicated above, adding a second neighbouring property would not likely have changed the result – the inappropriateness of joining the actions for damages to the neighbours’ properties due to oil migration with the contract/negligence claims against the Service Providers.
9I accept that the full extent of the contamination plume may not have been known at the time of Master Muir’s order and the likelihood that it reached to 171 Rumsey Rd. (“171”) and possibly 169 Rumsey Rd (“169”), neighbouring properties to the south of 173 (although there was some suspicion that 171 may be affected as early as December 2012). I also accept that once the extent of the plume became known, the best and least expensive approach to the contamination was a co-ordinated remediation of all the properties (rather than assessing damages to each property and effecting remediation to each property line) and that this would not have been known at the time of Master Muir’s decision. That knowledge however would have been unlikely to change the result. It is a strong argument in favour of trying the 173 Action and the 177 Action together so that a co-ordinated remediation could be planned and damages assessed accordingly. The 173 and 177 Actions however would still be little more than an assessment of damages, albeit with a different approach to assessing the damages. It does not however constitute a basis for joining those assessment of damage claims to the contract/negligence claims in the Service Provider Action and the Service Provider Third Party Claim (collectively the “Service Provider Actions”) now, any more than it did at the time of the motion before Master Muir. The issues still remain distinct and a coordinated remediation approach to the damages does not alter that conclusion.
10I note that no action has been commenced by the owners of 171 or 169. Any such claim, or how it may affect the trial together of the actions is mere speculation. The court can only deal with the motion that is before the court (trial together of the current actions) and “must not be dependent on some prospective action which may never take place”: West York Construction (1984) Co. v. Walton Place (Scarborough) Inc., [1993] O.J. No. 1759 (OCGD) at para. 37. Even if 171 and 169 commenced actions arising out of oil migrating to their respective properties, that would add no more weight to having the oil migration actions tried with the Service Provider Actions.
The Gateway Criteria for Trial Together
11Even if the issue were not res judicata and I was hearing the motion for trial together at first instance I would have come to the same conclusion as Master Muir. Nicol still has to meet one of the gateway criteria under rule 6.01. In my view subrule (a) does not apply since there is no question of fact or law in common. The question of fact in the 173 and 177 Actions is the migration of the oil and the source of the contamination. More recent expert reports have concluded that the contamination at 173 and 177 (as well as 171 and 169) are all from the same source and that source was the oil that had spilled at 175. The question of fact in the Service Provider Actions is the cause of the spill at 175. The issue in the 173 and 177 Actions is little more than an assessment of damages resulting from the contamination, whereas the issues of mixed fact and law in the Service Provider Actions relate to the contractual obligations and negligence of the Service Providers. Why the oil spilled at 175 or who caused the spill will have no bearing on the issues and the damages to be assessed in the 173 and 177 Actions, only that 175 oil has migrated to their properties.
12Likewise subrule (b) does not apply since the relief claimed in the 173 and 177 Actions does not arise out of the same transactions or occurrences as the Service Provider Actions. The occurrence in the Service Provider Actions was the spilling of oil at 175. The occurrence in the 173 and 177 Actions was the migration of oil from 175 to neighbouring properties. The trial together of the 173 and 177 Actions and the Service Provider Actions do not meet the gateway criteria in rule 6.01.
13In contrast, the 173 and 177 Actions both arise from the same occurrence, the migration of oil from 175 and this is an issue of fact common to both actions. Although damages may differ for each property, the two properties are linked by the common contaminant plume and, as articulated by Nicol, a co-ordinated remediation of both properties (and possibly others) is the preferred solution. Trial together of 173 and 177 (without the Service Provider Actions) meets the gateway criteria.
Considering the Factors Respecting Trial Together
14If I am wrong and the common occurrence to all four actions was the oil spill at 175, thus satisfying one of the gateway criteria in rule 6.01, the court still has a discretion to consider all relevant factors and the interests of all parties to all actions and determine whether trial together is in the interest of justice. A non-exhaustive list of factors to consider in determining whether to order trial together is set out by me in 1014864 Ontario Ltd. v. 1721789 Ontario Inc., 2010 ONSC 3306 (SCJ – Master) at para. 18. I will consider those factors in the order they appear in the decision.
15Factor (a): The issues are not interwoven. The 173 and 177 Actions are for an assessment of damages to neighbouring properties for oil migration from 175. That is not interwoven with the cause of the original oil spill at 175 that is the issue in the Service Provider Actions. This favours not joining the Service Provider Actions.
16Factor (b): Indeed the same damages, more or less, are sought in both actions. The damages sought in the 173 and 177 actions against Nicol are for the cost of remediation, expenses and possibly decreased property value, and the damages sought by Nicol against the Service Providers in the Service Provider Actions is for contribution and indemnity for damages paid out in the 173 and 177 Actions. This factor however is of less importance given that the Service Providers have agreed in writing to be bound by any quantum of damages assessed in the trial of the 173 and 177 Actions.
17Factor (c): While a global assessment of damages (co-ordinated mediation) may be an appropriate method of measuring damages, that supports trial together of the 173 and 177 Actions but not together with the Service Provider Actions.
18Factor (d). In my view there will not be a significant overlap of evidence or witnesses in the 173 and 177 Actions and in the Service Provider Actions. Expert evidence on the effects of contamination and the assessment of damages/costs of remediation, including the costs of co-ordinated remediation will be required in each of the 173 and 177 Actions (thereby favouring trial together of the 173 and 177 Actions) but that evidence will not be required in the Service Provider Actions since the Service Providers have agreed to be bound by the assessment of damages. Expert evidence as to the cause of the spill is required in the Service Provider Actions but counsel for Nicol has failed to satisfy me that those experts would need to testify in the 173 and 177 Actions, since only the source of the contamination and not the cause of the spill is relevant in those actions. Of all the property owners, only Nicol may be required to testify in all of the actions.
19Factor (e): Nicol is the only party common to all actions.
20Factor (f): Nicol’s lawyers are the only lawyers involved in all the actions.
21Factor (g): There is no risk of inconsistent findings if the 173 and 177 Actions are not tried with the Service Provider Actions. The cause of the spill is not an issue to be determined in the 173 and 177 Actions. All parties’ experts have agreed that 175 is the source of the migrating contaminant and so that is not an issue in the Service Provider Actions. There is no risk of an inconsistent assessment of damages as the Service Providers have agreed to be bound by the assessment of damages in the 173 and 177 Actions. There could however be a risk of inconsistent assessment of damages if the 173 and 177 Actions are not tried together, although it is clearly possibly for an assessment of the separate (not co-ordinated) costs of remediation for each property.
22Factor (h): Liability in the 173 and 177 Actions is relatively straightforward and will not likely be in issue. Those actions will be an assessment of damages. The determination of liability in the Service Provider Actions is complex involving breach of service contracts and negligence and events going back over 30 years.
23Factor (i): A decision in the 173 and 177 Actions would narrow the issues in the Service Provider Actions as damages will have been determined.
24Factor (j): The litigation status of each action: At the time of the motion before Master Muir, discoveries in the 173 Action were completed and it was ready to be set down for trial. It is now far more advanced. Mediation was conducted on September 29, 2014, the action set down for trial on November 20, 2014, dates for pre-trial and trial set on July 27, 2015 and the pre-trial conference was conducted on February 16, 2016. Trial is scheduled to commence on September 12, 2016 for 10 days. Although the 177 Action had not yet been set down for trial as of the date of the motion before me, examinations for discovery were completed on October 2, 2015 and April 4, 2016, both parties have served expert reports, the Piccolottos have answered their undertakings and the Nicols have partially answered their undertakings. A mediation had been booked for May 27, 2016 and the plaintiffs were ready to set the action down for trial. (it has since been set down for trial on May 18, 2016.) On the other hand in the Service Provider Action, not all discoveries have been completed, Nicol’s undertakings remain outstanding, the Service Providers have yet to serve their expert reports, no mediation has been booked and the action is not ready to be set down. The individual Service Provider defendants are contemplating a motion for summary judgment, but it has not yet been booked. If the Service Provider Actions are joined, the Service Providers have indicated they will seek an adjournment of the September 12, 2016 trial date.
25Factor (k): At the present time some of the Service Providers have delivered a jury notice. There is no jury notice in the 173 or 177 Actions. While the Service Providers have since retained new counsel and may withdraw their jury notice, the extant situation would make trial together difficult.
26Factor (l): Examinations for discovery in the Service Provider Actions will not be avoided if the actions are tried together. Those examinations are on different issues. In any event, these examinations are substantially completed and Nicol, the only party common to all actions, has already been discovered in each action.
27Factor (m): The timing of the motion and the possibility of delay. Without commenting on whether the motion could have been brought earlier, clearly the timing of the motion (if granted) will jeopardize the fixed trial date and will result in substantial delay to the McColgans who have waited a considerable time to get their property remediated both before and after commencing this action. Although 10 days have been set aside for trial, it will be insufficient time to accommodate all four actions. Further, Nicol is not yet in a position to set his action down and would not be ready for trial by the September 12, 2016 trial date. Even if Nicol could be ready, counsel for the Service Providers states he could not be ready by that trial date and he would seek an adjournment of the trial. He is still awaiting undertakings from Nicol, completion of Nicol’s examination and expert reports. The pre-trial in this matter came before Akhtar J. on February 16, 2016. Justice Akhtar acknowledged that I would be hearing this motion and my decision “will determine the pathway of litigation in this case”. He stated, on the agreement of all parties that (a) if Nicol was successful in persuading me to consolidate the actions, the pre-trial involving only McColgan and Nicol is redundant. and the parties would thereafter attend Civil Practice Court to vacate the September 16 trial date and set a new timetable, but (b) if McColgan rebuts the motion to consolidate, then Nicol and McColgan would reschedule a new pre-trial in front of Justice Akhtar to discuss potential settlement and trial issues. Justice Akhtar did not address the possibility that I would order the 173 and 177 Actions to be tried together, while refusing the motion to have the Service Provider Actions heard with them. I am satisfied on the evidence before me that (a) the 177 Action will be ready for trial on September 16, 2016, the trial date in the 173 Action and (b) the 173 and 177 Actions can be tried together in the 10 days allotted for the trial as long as the Service Provider Actions are not tried at the same time since there will be no need for expert evidence as to the cause of the contamination at 175.
28Factor (n): McColgan and Piccolotto will both face substantial increases in cost if forced to try their actions together with the Service Provider Actions, given the complexities of those actions. I appreciate that McColgan and Piccolotto will also incur some additional costs by sitting through the respective damage claims of the other in the trial together of the 173 and 177 Actions, but to a much lesser extent. That will also be mitigated by the evidence of co-ordinated remediation that will involve both properties, making the trial together of those two actions beneficial. I appreciate that Nicol will incur the additional costs of trying the 173 and 177 Actions separately from the Service Provider Actions, however in my view the wasted costs are less than the increased costs to the 173 and 177 property owners if all actions are tried together since the trial as to the cause of the spill and who is responsible would require a number of separate days of court time whether in a combined trial of four actions or in two separate trials. In my view this factor weighs in favour of joining the 173 and 177 Actions, but trying the Service Provider Actions separately.
29Factor (o): There is no additional prejudice or advantage to trial together or separately other than the previously mentioned delay and costs. McColgan has already suffered significant delay, firstly in dealing with Nicol’s insurer before commencing action (with whom he co-operated to no avail) and then through the history of this litigation, including the delayed claim against the Service Providers. McColgan finally has a fixed trial date scheduled for this September. If the Service Provider Actions are joined, this will result in an adjournment of that trial to a long trial in excess of 10 days. Long trials in Toronto are currently being scheduled two years out from the time parties are ready to fix a date. The Service Providers in any event are not ready to schedule a trial. This delay is real prejudice to McColgan whose land remains contaminated. As discussed, there is little prejudice to Nicol trying the Service Provider Actions separately.
30Factor (p): Although adding the Service Provider Actions would add undue complexities to the 173 and 177 Actions, which are essentially assessments of damages, they could, if necessary, be dealt with by the trial judge. This is a neutral factor, and adds little more than the additional delay and costs previously discussed.
31Factor (q). The joinder of the 173 and 177 Actions to the Service Provider Actions is not on consent. Only Nicol requests this relief. McColgan strongly objects to joinder with the Service Provider Actions, but is prepared to try the 173 and 177 Actions together provided the current fixed trial date is not lost. The Piccolottos consent to and strongly prefer trial together of the 173 and 177 Actions and to sever the Service Provider Third Party Claim from the 177 Action. They do not oppose Nicol’s motion to try all four actions together, but that is not their preference and they are concerned over the delay it might entail. The Service Providers strongly object to trial together of the Service Provider Actions with the 173 and 177 Actions if they would be forced to trial in September, and would move to adjourn it. They take no position on severing the Service Provider Third Party Claim. They do not oppose trial together of the 173 and 177 Actions.
32I must also mention the argument made by Nicol that there have been recent attempts by a “Brownfield Developer” to buy all the contaminated properties, remediate the soil, demolish the buildings if and as necessary and redevelop the site. There is a dispute whether the price that would be paid by a Brownfield Developer would eliminate the claims of McColgan and Piccolotto. Any additional damages not covered by the purchase price would still need to be tried and may reduce the amount of trial time. While I certainly encourage settlement through a Brownfield Developer it is still speculation whether that will transpire and if so when. In any event it is not a reason to delay the fixed trial date. Even more, it does not provide any additional argument in favour of trying together the Service Provider Actions with the other actions. Even if there is a co-ordinated remediation, with or without assistance from a Brownfield Developer, it will not resolve the issue in the Service Provider Actions as to who was responsible for the losses. It will be up to the Service Providers whether to contribute to any resolution of the contamination claims.
Conclusion
33While a single trial is preferable if it will avoid duplication of proceedings and reduce court resources required for the determination of similar issues, I have found that the issues as between the 173 and 177 Actions on one hand and the Service Provider Actions on the other are not similar. They involve different evidence and do not require determination in a single proceeding. There will be minimal if any duplication of proceedings if the Service Provider Actions are tried separately. As can be seen almost all of the factors favour trial together of the 173 and 175 Actions, but not together with the Service Provider Actions.
34In the result I ordered on May 9, 2016 that (a) the motion for trial together of the 173 Action, the 177 Action, the Service Provider Action and the Service Provider Third Party Claim be dismissed, (b) that the alternative relief for trial together of the 173 Action and the 177 Action be granted provided that the 177 Action was set down for trial within 14 days (it was set down for trial on May 18, 2016), (c) that the Service Provider Third Party Claim be severed from the 177 Action and tried with the Service Provider Action and (d) that (on consent) the deemed undertaking be waived as among the four actions.
Costs
35Nicol was unsuccessful in obtaining the primary relief sought, but obtained the alternate relief of trial together of the 173 and 177 Actions. This motion however was almost entirely directed to the trial together of all four actions, both in written materials and at the hearing of the motion, and this was the order sought by Nicol. The primary relief requested by Nicol was opposed by McColgan and the Service Providers and it was not the preferred relief for the Piccolottos.
36Interestingly each of McColgan, Piccolotto and the Service Providers made similar offers to settle the motion. Each offer to settle was made prior to their delivering responding materials and well in advance of their delivering factums. On March 18, 2016, McColgan served an offer to settle for trial together of the 173 and 177 Actions but not together with the Service Provider Actions. If accepted within three days the offer was without cost consequences but if accepted after that date Nicol would pay partial indemnity costs. The offer remained open until one minute after the commencement of the motion. On March 21, 2016, the Piccolottos served an offer to settle for trial together of the 173 and 177 Actions but not together with the Service Provider Actions. If accepted within two days the offer was without cost consequences but if accepted after that date Nicol would pay partial indemnity costs. The offer remained open until one minute after the commencement of the motion. On March 30, 2016, the Service Providers served an offer to settle for trial together of the 173 and 177 Actions but not together with the Service Provider Actions. The Service Provider Actions would be tried separately at a later date after the 173 and 177 Actions were tried or settled.
37Each responding party was successful on the motion and the court made an order that matched each offer to settle. McColgan and Piccolotto each seek costs on a substantial indemnity scale. The Service Providers seek costs on a partial indemnity scale. Each offer was made pursuant to rule 49.02(2) which provides that the provisions of Rule 49 also apply to motions with necessary modifications. The offers were made to settle the motion in its entirety. The offers were made within the conditions set out in rule 49.10: they were each made at least seven days before the hearing (in fact they were made respectively between 40 and 52 days before the hearing), they were not withdrawn and did not expire before the commencement of the motion, they were not accepted by the moving party (Nicol) and the relief obtained by Nicol was no more favourable than the terms of each offer. If I am wrong that rule 49.02 applies, I am still entitled to consider and do consider pursuant to rule 49.13 the offers to settle made in writing, the date the offers were made and the terms of the offers in exercising my discretion as to costs.
38Clearly each responding party is entitled to their costs. Nicol does not suggest otherwise although he disputes the quantum. Each responding party made a genuine offer to settle that was the most appropriate resolution of the motion. It should have been accepted by Nicol. This was compounded by the behaviour of Nicol who brought on this motion for a second time after it had already been denied by Master Muir (albeit with the Piccolotto action now added). Nicol had been warned that the issue was res judicata by McColgan in correspondence leading up to and again at the case conference of February 24, 2016 convened to schedule this motion. The refusal to accept the very reasonable offer resulted in each responding party incurring the costs of preparing responding materials. In my view each of McColgan and Piccolotto should have their costs on a substantial indemnity scale after the dates of their offers and on a partial indemnity scale prior to that date. The Service Providers should have their costs, as requested, throughout on a partial indemnity scale.
39In fixing costs, even on a substantial indemnity scale, the court must consider the factors under rule 57.01 and determine costs that are fair and reasonable in all the circumstances and within the reasonable expectations of the losing party, rather than awarding to the winning party an exact measure of costs incurred. While time spent and hourly rates are important factors, the fixing of costs is not simply a mathematical exercise of multiplying hours spent by the appropriate rate. The issues on the motion were complex, involved four actions and a review of numerous factors and were important to the parties.
40The McColgan plaintiffs claim that their fees on a full indemnity basis were $15,931, which when combined with disbursements and HST results in actual costs of $19,293. They seek substantial indemnity fees of $14,401 for a total with HST and disbursements of $17,564. The partial indemnity totals would be $10,627 for a total of $13,299. The issues were particularly important to these plaintiffs since their long sought fixed trial date was in jeopardy and had Nicol been successful they would have been dragged into a complex trial with the Service Providers over the cause of the spill. These plaintiffs prepared a detailed responding record, factum and authorities. They took the lead on the motion. The hours spent were justified and the hourly rates and the reductions to a substantial indemnity and partial indemnity scale are appropriate. The initial costs of the case conference and receiving Nicol’s initial motion record will be on a partial indemnity scale and thereafter on a substantial indemnity scale. In my view all-inclusive costs of $16,000 are fair and reasonable. In my view such costs should have been within the reasonable expectations of Nicol. Even though Nicol presents his own costs outline indicating actual fees and disbursements of $4,364 that is highly suspect. The most glaring example is the total of only one hour (30 minutes by each of two lawyers) for reviewing the responding records, factums and authorities of all three responding parties. Another example is a total of only 5 hours (among two lawyers) for preparing a very extensive motion record, a supplementary record, factum and authorities.
41The Piccolotto plaintiffs seek a combined partial and substantial indemnity costs award of $20,074 inclusive of $15,862 fees plus disbursements and HST. They base this on 75% of actual fees of $20,376. While I do not take issue with their billing rates and do not doubt that the time as listed was spent, I am of the view that the totality of the costs sought by them is excessive. The issues were of less importance to them than to McColgan, and unlike McColgan, they did not oppose trial together of all four actions as sought by Nicol although their preference was for trial together of only the 173 and 177 Actions. Their offer to settle was drafted to meet their preferred position and it was successful. They prepared their own responding record, factum and authorities although they allowed the McColgan plaintiffs to take the lead. In my view all-inclusive costs of $14,000 is fair and reasonable and within the reasonable expectations of Nicol.
42The Service Providers ask for partial indemnity costs of $2,646 inclusive of fees and minimal disbursements. Nicol accepts that request as fair and reasonable, as do I.
Order
43Order to go as follows:
- In action CV-12-463715 the defendant Alexander Nicol shall pay to the plaintiffs Stephen McColgan and Katherine Karellas their costs of this motion within 30 days fixed in the sum of $16,000.00.
- In action CV-14-502184 the defendants Alexander Nicol and Leona Nicol shall pay to the plaintiffs Jane Piccolotto and Sisto Piccolotto their costs of this motion within 30 days fixed in the sum of $14,000.00.
- In actions CV-13-487961 and CV-14-502184-00A1 the plaintiffs/defendants Alexander Nicol and Leona Nicol shall pay to the defendants/third parties Nortown Natural Gas Limited, Helmut Rieck, Maxwell Excavating Limited, Solomon Zeifman and Enbridge Gas Distribution Inc. their costs of this motion within 30 days fixed in the sum of $2,646.00.
Master Ronald Dash
Date: June 7, 2016