Court File and Parties

Citation: 1904601 Ontario Ltd. O/A Hi-Tek Drywall v. 58 Cardill Inc., 2016 ONSC 7980 Court File No.: C-1162-14 Date: 2016/12/21 Superior Court of Justice - Ontario

Re: 1904601 Ontario Limited O/A Hi-Tek Drywall & Acoustics, Plaintiff And: 58 Cardill Inc., Prica Group Inc. and Rathcliffe Holdings Limited, Defendants

Before: The Honourable Mr. Justice G. E. Taylor

Counsel: Peter J. Mitchell, Counsel, for the Plaintiff Les O’Connor, Counsel, for the Defendant, Prica Group Inc.

Heard: September 7 and 27, 2016

Cost Endorsement

[1] On November 17, 2016, I released Reasons for Judgment on a motion for summary judgment. On the motion the plaintiff, 1904601 Ontario Limited O/A Hi-Tek Drywall & Acoustics, sought judgment against one of the defendants, Prica Group Inc., for the balance owing on a contract for the supply and installation of drywall to a student residence located in the City of Waterloo and for extras to the contract in the amount of $1,107,850.12. Judgment was granted in favour of Hi-Tek for the sum of $360,035 owing on the contract plus the sum of $390,606 for extras.

[2] The parties have made written submissions with respect to costs.

[3] Hi-Tek seeks an award of costs in the total amount of $78,810. Prica seeks an award of costs in the total amount of $95,056.76. Both claims are totally unreasonable.

[4] In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada spoke about the need for “a culture shift … in order to create an environment promoting timely and affordable access to the civil justice system”. Accordingly, the Court directed that “summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims”. Lastly, the Court observed “the inappropriate use of summary judgment motions creates its own costs and delays”. Sadly, those comments seem to have been ignored by the parties to this summary judgment motion.

[5] The motion was first served in July 2015. It was not argued until September 2016. Oral argument spanned two days. Between those dates, copious affidavits were served, seven witnesses were cross examined and the transcripts of those examinations were filed as evidence on the motion. The witnesses on the motion included experts for both parties. Counsel for Hi-Tek spent considerable time and effort attempting to convince the court that the opinions of his expert should be preferred to that of Prica’s expert. This, in my view, was unrealistic. Also, it should have been apparent to Hi-Tek that there was a serious credibility issue to be determined regarding the extras to the contract being claimed by Hi-Tek.

[6] Prica points out that the judgement which was granted was for essentially for the amounts it admitted to be owing. I partially agree with that position. Prica admitted that the amount owing on the contract was very close to the amount for which judgment was granted but Prica’s position was that the amount owing on the contract should be reduced by an amount which it says it was required to pay to other drywallers because Hi-Tek was unable to complete the work under the contract in the time specified in the contract. Also Prica offered to pay the amount for extras in the approximate amount found by me to be owing, but its position was always that Hi-Tek had to accept this amount in full and final satisfaction of the claim for extras. At no time did Prica unequivocally acknowledge liability for the amounts found to be owing.

[7] Both parties claim to have achieved a result on the motion for summary judgment which is more favourable than their respective settlement offers. I disagree. Hi-Tek’s offer that Prica acknowledge liability for the extras to the contract with the amount to be determined at trial, is hardly a genuine offer to compromise. As I have already commented, Prica’s offer was contingent on Hi-Tek agreeing to accept the amount offered in full and final satisfaction of all its claims.

[8] The Statement of Claim in this action was issued in December 2014. In my view the trial could have been completed in the time it has taken to reach the stage of the completion of the motion for summary judgment.

[9] Hi-Tek was successful on the motion in that it obtained judgment for a significant portion of the amount of its claim. However, as I have explained, it could have achieved that result far more expeditiously than has occurred.

[10] I therefore find that Hi-Tek is entitled to its costs of the motion for summary judgment but in an amount that does not encourage wasteful use of court time on motions for summary judgment which are doomed to fail. Prica is ordered to pay to Hi-Tek its costs of the motion for summary judgement which I fix in the amount of $15,000 inclusive of disbursements and HST, payable within 30 days.

G. E. Taylor J.

Date: December 21, 2016