Court File and Parties

COURT FILE NO.: 5234/06 DATE: September 14, 2016 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ravenda Homes Ltd. Plaintiff AND: 1372708 Ontario Inc. and Vaughn Gibbons, Defendants

AND BETWEEN

1372708 Ontario Inc. Plaintiff by Counterclaim AND Ravenda Homes Ltd. and John Ravenda Defendants by Counterclaim

AND Court File 5326-06 IN THE MATTER OF THE CONSTRUCTION LIEN ACT, R.S.O. 1990, c. C30 Ravenda Homes Ltd. Plaintiff AND 137 Ontario Inc. Defendant

BEFORE: Turnbull, J.

COUNSEL: Robert Harason, Counsel, for 1372708 Ontario Inc and Vaughan Gibbons, Moving Parties Ryan Breedon, Counsel, for Ravenda Homes Ltd. and John Ravenda, Responding Parties

Motions Heard: February 13, March 9 and March 16, 2015

COSTS ENDORSEMENT

[1] This is a costs endorsement relative to a motion brought by 137 to compel the plaintiffs, and in particular John Ravenda who is the principal of Ravenda Homes Inc., to answer undertakings and questions refused to be answered on his examination for discovery in these three proceedings. Mr. Ravenda was examined for discovery on March 12, 13, and 14, 2013 and gave a significant number of undertakings while also refusing to answer certain questions. On the advice of his then counsel (not counsel of record on this motion) a number of other questions were taken under advisement and after this motion was brought, consent to answer them was given.

[2] In my view, this motion resulted in substantial success for 137 with respect to the relief sought on the motion. Undertaking charts were provided to the court and each of the disputed questions was reviewed and a ruling was issued by the court in electronic form to facilitate review by counsel. Each question was considered and the result, whether on consent or otherwise, noted in the chart.

[3] It is clear that on a great majority of the questions, Mr. Ravenda was ordered to answer certain questions or agreed through his counsel to answer the questions and/or undertakings given.

[4] It is clear from the record that most of the unsatisfied undertakings and most of the questions refused and taking under advisement, were either ordered to be answered or agreed by Ravenda to be answered after the motion was brought. Mr. Ravenda was ordered to attend for his continued examinations for discovery in Toronto and not in the Niagara region where he resides. He was also ordered to deliver a further and better affidavit of documents which gave each production its own unique number to facilitate identification.

[5] 137 was not totally successful on the undertakings motions and that results in some reduction of the partial indemnity costs awarded to 137 on this motion. I further note that 137 was not successful in its motion to examine Mr. Ravenda on the expert report delivered by Deloitte LLT. That motion was dismissed. Counsel for 137 has argued that should not result in a diminution of its costs because of some shared success on the issue or because a novel point of law was raised. I do not concur. I do not consider it to be a particularly novel point of law. The Rules are clear with respect to who is eligible to be discovered and on what basis. Furthermore, while the court did grant 137 the right to seek leave of the court to examine the author of the Deloitte LLP report if the proper foundation for that is established in the future, costs of that motion would be determined at that time.

[6] Mr. Breedon has argued that because there is shared success on the motion (i.e. 137 was not totally successful) costs should simply be awarded in the cause.

[7] I recognize that where there is true shared success on a motion, such a disposition is sometimes appropriate. However, in light of the length of these complex proceedings and a great number of undertakings and refusals which were outstanding, I do not feel that a costs award “in the cause” is appropriate.

[8] I note that this motion was initially argued on February 13th, 2015. I directed counsel after the first day of submissions to meet to try to resolve the balance of the motion and some progress was made. Nevertheless, the motion had to be brought, prepared for and most of the questions for which the motion was brought were either ordered to be answered or agreed to be answered by Ravenda after the motion was brought. This entitles 137 to its costs of the motion.

[9] Rule 57.031(1) and the case law interpreting it are clear that an order for costs in the cause should only be made in extraordinary circumstances. I do not think such extraordinary circumstances exist. In my view, I as the motions judge am the person best able to determine the liability and quantum of costs because I have reviewed and heard the arguments in this case which are extraordinarily complex and have involved numerous motions.

[10] In my view the motion was necessary largely due to Mr. Ravenda’s reluctance or refusal to comply with his litigation obligation. As I have reviewed the questions and the refusals, in my view they were important to 137. Legal issues in this matter are reasonably complex and the agreement of Ravenda’s counsel to have his client answer a number of the matters previously taken under advisement or refusal is recognition of the fact that the issues were relevant and important.

[11] Mr. Harason has provided the court with a costs outline in which the sum of $22,535.15 is claimed as costs on a partial indemnity basis.

[12] I have reviewed the issues relative to the fixing of costs in Rule 57.01. This was not a particularly complex matter but it was time consuming and detailed because of the number of refusals and undertakings which were the subject matter of the motion. Mr. Harason is an experienced counsel and has claimed his fees at $325.00 per hour. I find that that is a reasonable amount on a partial indemnity basis bearing in mind his experience and the years at the bar.

[13] In his costs summary, Mr. Harason has noted that he was called to the bar in 1980 and has practiced commercial litigation for 35 years. I note he has claimed 16.3 hours of legal research by his student at law based on a partial indemnity rate of $100.00 per hour and $90.00 per hour for 20 hours of work by his law clerk to prepare undertakings, refusals and under advisement charts. I find this is a reasonable delegation of work to help reduce the cost of counsel in these proceedings.

[14] I have reviewed the disbursements claimed by 137 which total $1202.03 inclusive of HST. Mr. Breedon did not take any serious issue with respect to those disbursements and in my view they are properly assessable. I reduce the sum claimed to allow for the lack of success in bringing the motion to examine the expert who wrote the Deloitte LLP report and for some of the questions which were not ordered to be answered by Mr. Ravenda.

[15] In my view, partial indemnity costs and disbursements in the sum of $19,000.00 inclusive of HST should be paid within 30 days by the plaintiff to the defendant. In considering the reasonableness of the amounts claimed, I further note that the plaintiff in its own cost outline sought a payment of partial indemnity costs of $34,668.70.

Turnbull, J. Date: September 14, 2016