Court File and Parties

BARRIE COURT FILE NO.: CV-15-0904 DATE: 20160525 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SELECTRA INC. Plaintiff – and – THE CORPORATION OF THE TOWN OF PENETANGUISHENE and SONA CONSTRUCTION LIMITED Defendants

Counsel: Howard L. Shankman, for the Plaintiff Derek A. Schmuck, for the Defendant Sona Construction Limited

HEARD: March 17, 2016

RULING ON COSTS

DOUGLAS J.

Overview

[1] This is my ruling on costs arising from the motion argued before me on March 17, 2016, with reasons released on April 4, 2016.

[2] The defendant Sona sought an order reducing the amount of security posted with the court from $1,372,552.36 to $764,763.80, representing a reduction of $607,788.56.

[3] In the result I reduced security to $908,225.43, representing a reduction of $464,326.93.

[4] The difference between the reduction sought by Sona and that secured by Sona is $143,461.61.

[5] Sona seeks costs of $24,697.70 on a partial indemnity basis. A Bill of Costs has been submitted in this regard.

[6] Although offers appear to have been exchanged, none triggers cost consequences.

[7] Sona submits that it achieved success on the motion and that after bringing the motion Selectra made concessions and made further concessions after cross-examinations and yet further in submissions at the outset of the hearing of the motion.

[8] Selectra argues that success was divided and there ought to be no award as to costs. In this regard it is submitted that Sona’s requested reduction of $212.461.86 in respect of additional time for the site supervisor was rejected in its entirety. Also rejected was Sona’s request for an additional reduction of $60,505.92 regarding site supervisor time.

[9] In response to Sona’s submission regarding untimely concessions by Selectra, Selectra submits that counsel for Sona sent an email on October 28, 2015 indicating that this motion had been prepared and was returnable on November 10, 2015 in Barrie. This represented the first notice to Selectra’s counsel of this intended motion. Sona’s counsel proposed resolution of the motion by reducing the bond to $329,234.28 including costs. Following receipt of this email Selectra offered its initial concessions regarding reduction of security.

[10] In these circumstances I do not fault Selectra for the timing of its initial concessions although it should accept some responsibility lack of timeliness of the subsequent concessions.

[11] The costs also include an attendance on a contested adjournment of the initial return of the motion on November 10, 2015. The disbursement for agency counsel claimed by Sona is, in the circumstances, somewhat excessive.

[12] Ultimately the test for an appropriate cost award is what would be fair and reasonable in the circumstances.

[13] In the circumstances described herein where this matter was of average complexity and the result clearly mixed given the foregoing, I make no award as to costs.

Douglas, J. Released: May 25, 2016