CITATION: Trenchline Construction Inc. v. Unimac, 2016 ONSC 8183
COURT FILE NO.: CV-12-454092
DATE: December 30, 2016
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Trenchline Construction Inc. v. Unimac and Metrolinx, CV-12-454092 (“the Trenchline Action”);
RE: Cos Shore Inc. v. Unimac, Dalcor Inc. and Metrolinx, CV-12-458893 (“the Cos Shore Action”);
RE: Terratechnik Environmental Limited v. Unimac, Dalcor Inc., Metrolinx and Canadian National Railway Company, CV-12-451538 (“Terratechnik Action”);
RE: James Dick Construction Limited v. Dalcor Inc., Unimac and Metrolinx, CV-12-453763 (“Dick Action”);
RE: Caledon Sand & Gravel Inc. v. Dalcor Inc., Unimac and Metrolinx, CV-12-453765 (“the Caledon Action”);
RE: Direct Equipment Ltd. v. Metrolinx and Terratechnik Environmental Limited, CV-13-477348 (“the Direct Action”);
RE: Stephenson’s Rental Services Inc. v. Metrolinx and Dalcor Inc., CV-12-454686 (“the Stephenson’s Action”);
RE: Unimac-United Management Corp. (“Unimac”) v. Canadian National Railway Company and Metrolinx, CV-12-454429 (“Unimac Lien Action”);
RE: Dalcor Inc. v. Unimac and Metrolinx, CV-13-485398 (“the Dalcor Action”);
BEFORE: MASTER C. WIEBE
COUNSEL: Hersen, G. D., for Metrolinx (the moving party); Wiffen, M. for Trenchline Construction Inc. (a responding party);
Cosentino, J., for Cos Shore Inc. (a responding party);
Campione, J. D., for Terratechnik Environmental Limited (a responding party);
Schmuck, D., for Direct Equipment Ltd. (a responding party).
HEARD: December 7, 2016 at Toronto, Ontario.
REASONS FOR DECISION
(Motion to post)
I. INTRODUCTION
[1] Metrolinx, the owner of the subject improvement, moves under Construction Lien Act, R.S.O. 1990, c. C.30 (“CLA”), section 44(2) for an order that, upon Metrolinx posting the amount of $677,896.02, being the total of the agreed upon basic holdback and the determined notice holdback, the claims for lien and certificates of action of the subtrades, Trenchline Construction Inc. (“Trenchline”), Cos Shore Inc. (“Cos Shore”), Terratechnik Environmental Limted (“Terratechnik”), Caledon Sand & Gravel Inc. (“Caledon”), James Dick Construction Limited Inc. (“Dick”), Direct Equipment Ltd. (“Direct”), Stephenson’s Rental Services Inc. (“Stephenson’s”), be vacated and their lien actions as against Metrolinx dismissed, the claims for lien and certificates of action of Unimac-United Management Corp. (“Unimac”) and Dalcor Inc. (“Dalcor”) be discharged and vacated, costs concerning the motion and the reference be awarded in favor of Metrolinx as against Trenchline, Cos Shore and Terratechnik, and excess holdback be paid back to Metrolinx once the subtrade lien entitlement is determined. Trenchline, Cos Shore, Terratechnik and Direct oppose only the costs portion of that motion, seek their own costs order as against Metrolinx, and seek an order that Metrolinx’s exposure to prejudgment interest be posted. Caledon, Dick and Stephenson’s did not appear.
II. BACKGROUND
[2] At the trial management conference before me on October 13, 2016, Metrolinx expressed a desire to move to post its maximium potential liability for basic and notice holdback, as agreed upon or determined. Since I had in previous orders dismissed the Unimac Lien Action as against Metrolinx and the Dalcor Action, Metrolinx stated that it also wanted to move in the same motion for an order dismissing the remaining subtrade claims against it, as, according to Metrolinx, the remaining subtrades had no claim against Metrolinx beyond the holdback. The other parties wanted to use the same motion to have Metrolinx ordered to post its maximum exposure for prejudgment interest on holdback and pay costs to the subtrades, with the argument being that Metrolinx was also liable to the subtrades for costs and interest.
[3] Thinking that the parties had narrowed the issues as between them and that the stated remaining issues did not justify Metrolinx’s further participation, I concurred and scheduled the motion to be argued before me on December 7, 2016.
[4] On November 1, 2016 I deferred the scheduling of the trial of Direct’s alternative claim against Metrolinx for unjust enrichment until after the result in the lien/bond claim trial. This was done, as that claim may become moot should Direct succeed entirely in its claim as against Terratechnik.
[5] On November 16, 2016 Metrolinx sought my leave to seek costs in this motion for the reference as against certain of the subtrades, namely as against Trenchline, Cos Shore, Terratechnik and Direct. Since this only seemed fair given the costs claims of the subtrades as against Metrolinx, I gave Metrolinx the requested leave.
[6] At the commencement of the argument of this motion on December 7, 2016, I advised counsel that it was not clear to me at that point whether the subtrades had in fact abandoned their claims against Metrolinx that were outside the holdback obligation. I was satisfied that Trenchline had abandoned any delay claims that were outside of the holdback obligation; that was done at the trial management conference on October 13, 2016. However, each subtrade had claimed as alternative remedies unjust enrichment and quantum meruit as against Metrolinx for the entirety of their claims. In turn, I was not clear whether Metrolinx had abandoned its defences against the subtrade claims. In each case, Metrolinx attacked the quantum and timeliness of each subtrade claim, adopting Unimac’s defences. I advised counsel that this uncertainty made it difficult to proceed with the motion and to award costs.
[7] After a discussion, counsel agreed to a consent order as follows, which I gave and which I reproduce and reiterate here:
“ Order on consent that, upon payment by Metrolinx into court of the determined holdback (basic and notice) and pending the determination of the issue of interest, the lien claims and certificates of action of Trenchline, Cos Shore, Terratechnik, Direct, Dick, Calendon and Stephenson’s are vacated and the actions of Trenchline, Cos Shore, Terratechnik, Dick, Calendon and Stephenson’s as against Metrolinx are dismissed, except for the issue of costs. Any excess holdback in court after the result in the lien/bond trial will be returned to Metrolinx.”
[8] Concerning the Direct claim, there was an issue about the late service of the Direct reply factum. This was resolved by Direct withdrawing its submission in the reply factum that Metrolinx should be required to post security for the entirety of all subtrade lien claims. Counsel in this action further agreed, and I ordered, that the issue of costs of that action in relation to Metrolinx (both as against Metrolinx and in favour of Metrolinx) be deferred to the Direct unjust enrichment trial. This was done, again, because the issue for costs in that action may become moot should Direct succeed entirely in its claim against Terratechnik.
[9] Mr. Hersen then pointed out that there remained the claim for lien of the subtrade, Elimi-Tank Installations, in the amount of $24,518. In my Trial Management Directions #7A dated December 14, 2015, I had ordered that, because of the non-appearance of this party at trial management conferences, it was barred from proceeding to trial.
[10] On December 7, 2016, Mr. Hersen asked that I go further and dismiss the Elimi claim in light of its non-involvement in this reference. I decided to give Elimi one last chance and made the following order:
“Elimi has 5 days from the date of service of my written reasons on this motion, which can be served by facsimile transmission, to notify Metrolinx in writing of its intention to proceed to prove its lien claim, failing which its claim for lien will be deemed discharged and its action dismissed. Should Elimi notify Metrolinx as ordered, it must immediately arrange a conference call with me to obtain interlocutory orders in order to get ready for the scheduled trial.”
[11] I require that Mr. Hersen serve these reasons on counsel for Elimi and he bring the above noted order to the attention of counsel for Elimi in his covering letter or email.
III. ISSUES AND ANALYSIS
(a) Should Metrolinx be required to post security for prejudgment interest?
[12] The subtrades want me to order that Metrolinx post security for prejudgment interest on the basic and notice holdback. The right to prejudgment interest stems from the Courts of Justice Act, R.S.O., c. C.43 (“CJA”). CJA section 128(1) states that, “a person who is entitled to an order for the payment of money is entitled to claim and have included in the order an award of interest thereon at the prejudgment interest rate, calculated from the date the cause of action arose to the date of the order.”
[13] Mr. Hersen’s first point was that none of the subtrades have had their claims for payment determined, and, as a result, they have no entitlement to prejudgment interest. This was a point that I raised in my ruling on the notice holdback in this reference, and caused me to defer that issue until the trial hearing. For the purposes of this motion, on the other hand, I do not consider this an obstacle to the requested relief. If in fact Metrolinx is at risk of paying prejudgment interest in the event the subtrades eventually succeed in their claims, it would be essential, in my view, at this stage to order that Metrolinx secure that liability as a condition of being let out of the actions.
[14] However, that just begs the question: is Metrolinx at risk of paying prejudgment interest on holdback? Having heard argument and reviewed the case authorities, I have reached the conclusion that it does not have this risk.
[15] First, the holdback’s primary function is to secure lien rights; see the CLA section 21. There are no lien rights for interest otherwise arising from unpaid work. CLA section 14(2) specifies that, “no person is entitled to a lien for any interest on the amount owed to the person in respect of the services or materials that have been supplied by the person . . .” Therefore, the holdback obligation does not extend to interest that accrues under other causes of action concerning unpaid work, such as breach of contract or quantum meruit or unjust enrichment causes of action. The lien claimant must pursue personal judgments for that interest; see M. Alzner Contractors Ltd. v. Roko Construction Ltd. 1995 CanLII 7238 (ON SC), [1995] O.J. No. 3185 (Gen. Div.) at paragraph 16.
[16] Second, holdback is not a payment obligation. There is an argument that holdback is its own “cause of action” and, as there is no expressed provision for prejudgment interest on holdback under the CLA, prejudgment interest should apply by virtue of CLA section 128(1). But that begs the question of whether holdback involves a payment obligation. CLA section 128(1) applies prejudgment interest as compensation for a payment obligation. As was stated by the Court of Appeal in Andrew Kowalczewski Insurance Brokers Ltd. v. Hunt [2001] O.J. No. 4429 at paragraph 13: “Pre-judgment interest is ordinarily awarded, absent special circumstances, to reflect the value of money wrongfully withheld from the plaintiff.”
[17] The CLA provisions concerning holdback make it clear, in my view, that holdback is a retention obligation, not a payment obligation. CLA sections 22 and 24 specify that basic, finishing and notice holdback must be “retained” by the payer. CLA sections 26 and 27 specify that basic and finishing holdback may pay the holdback without jeopardy only when “all liens that may be claimed against the holdback have expired . . . or have been satisfied, discharged or provided for under section 44.” The evidence on this motion is that none of the subtrade lien claimants in question had their claims “satisfied, discharged or provided for under section 44.” Section 44 is the section that provides for posting of security to vacate liens. CLA section 28 specifies that a notice holdback can be paid directly to a giver of a written notice of lien, but states expressly that such payment will be “without obligation to do so.” As a result, I am at a loss as to when Metrolinx was under any compulsion to pay holdback in this case.
[18] The subtrades argued that Metrolinx could have posted the holdbacks with the court pursuant to CLA section 44(2). This is the subsection which specifies that a “person” may obtain orders vacating liens upon the posting “of security of an amount that the court determines to be reasonable in the circumstances to satisfy the lien.” The argument is that the basic holdback could have been posted as early as the first claim for lien, the Trenchline claim for lien in February, 2012, and that the notice holdback could have been posted when the Trenchline written notice of lien was received in July, 2012. Had the holdbacks been posted, interest would have accumulated on the holdback in the accountant’s bank account. While all of this may be the case, again, there is nothing in subsection 44(2) that turns the non-payment obligation of holdback into a payment or posting obligation.
[19] This posting argument was rejected by the Divisional Court in James Dick Construction Ltd. v. Durham Board of Education, 2000 CanLII 26990 (ON SCDC), [2000] O.J. No. 3278 at paragraph 23. In this case a contractor posted a lien bond as security for a sub-subcontractor’s lien. The sub-subcontractor wanted interest on the contractor’s holdback obligation arguing that there would have been interest had the contractor posted the actual holdback, namely cash, rather than a bond. The court rejected that argument stating that the contractor did not improperly withhold money by posting a bond. The implication of this decision is that there is no obligation to post the holdback.
[20] The case of Soo Mills & Lumber Co. v. J.J.’s Hospitality Ltd. [1993] O.J. No. 1171 (Gen. Div.) bears discussion, as in that case Justice Whelan ordered that the owner pay interest on holdback. This decision was upheld by the Divisional Court and the Court of Appeal. Having carefully reviewed the decision, I think it is distinguishable. In Soo Mills the owner actually paid what it considered, and what was eventually determined to be, the holdback into an interest bearing bank account. The owner essentially renounced its claim to the fund. In paragraph 12 of the decision, Justice Whelan states that, “by identifying the fund as holdback, the owner acknowledged the entitlement of the lien claimants to that fund.” The court went on to find, without further analysis, that the accumulated interest on the fund should, therefore, be paid to the lien claimants. There was no finding that the owner was required to pay that fund into court or otherwise to anyone. The case before me does not have the same facts. The holdback here remained a notional amount that was under dispute.
[21] The case of 1022423 Ontario Ltd. (c.o.b. Trace Electric) v. Metcap Living Management Inc. 2010 ONSC 1782 also bears discussion. This is a decision of a Master. Here a subcontractor registered a claim for lien, and the contractor was found liable to pay the entire claim. The owner was found liable to pay holdback “plus prejudgment interest and post judgment interest.” There was no analysis of the issue. Therefore, the weight to be given to this decision is unclear.
[22] The subtrades also referred me to the decision of Justice P. A. Douglas in N.K.P. Painting Inc. v. Boyko 2016 ONSC 3016. Here the court ordered that an owner pay prejudgment interest to a subcontractor. However, the facts of the case are clearly distinguishable. The court found that the owner was directly liable to the subcontractor on its claim for restitution. Prejudgment interest entitlement would, therefore, follow. The decision does not deal with interest on holdback.
[23] Therefore, I have determined that Metrolinx is not required to post prejudgment interest for the holdback, as there is no risk that Metrolinx will have to pay such interest.
[24] I must add a comment about the Direct Action. Mr. Schmuck argued that Metrolinx should be required to post security for prejudgment interest liability, not just on the holdback, but on the entirety of the subtrade lien claims. He argued that it was within my discretion to do so, and was reasonable. I am not prepared to do so, as I am not persuaded that Metrolinx has liability to the subtrades for more than holdback. However, I acknowledge that Direct may have entitlement to prejudgment interest from Metrolinx on Direct’s unjust enrichment claim. The issue will be determined in the Direct unjust enrichment trial.
(b) What is the costs entitlement of the parties, if any?
[25] Metrolinx, on the one hand, and Trenchline, Cos Shore and Terratechnik, on the other, claim costs against each other for the entirety of the Trenchline, Cos Shore and Terratechnik Actions respectively. As stated earlier, the issue of the costs of the Direct Action has been deferred to the Direct unjust enrichment trial.
[26] Trenchline, Cos Shore and Terratechnik claim the following costs (tax inclusive) as against Metrolinx in their respective actions:
Sutrade claims against Metrolinx
Partial indemnity
Substantial indemnity
Actual cost
Trenchline
$88,248.06
$128,907.43
Not provided
Cos Shore
$11,340.31
$16,459.21
$27,457.50
Terratechnik
$26,137.41
$31,363.65
$37,645.32
[27] Metrolinx claims the following costs as against the same trades:
Metrolinx claims against subtrades
Partial indemnity
Substantial indemnity
Actual cost
Trenchline
$51,236.78
$67,289.90
Not provided
Cos Shore
$20,722.46
$27,107.29
Not provided
Terratechnik
$14,526.57
$19,470.77
Not provided
Based on the evidence in the motion, I am satisfied that neither Trenchline nor Metrolinx have included costs of the notice holdback trial of an issue in their claims, and that all parties have been careful to exclude from their claims costs that are claimable from other parties.
(b.1) Result:
[28] My jurisdiction to award costs stems from CLA section 86. This section gives the court a broad discretion to award costs against a party or a “person” who represents a party. However, there is an important limitation on this discretion. Subsection 82(2) specifies that an award of costs in favour of a party who does not take the least expensive course of action, shall not exceed what that party would have been incurred “had the least expensive course been taken.”
[29] The factors that a court in a lien proceeding may consider in awarding costs are outlined in Rule 57.01(1). The first, and foremost, of these factors is the result of the proceeding. Indeed, several of the factors listed in Rule 57.01(1) turn on there being a “result,” factors such as the expectation of the “unsuccessful” party, the apportionment of liability and the amount claimed compared to the amount recovered.
[30] “Result” is a difficult factor to assess in the case before me as that there has been no final decision on the issues between the parties other than the notice holdback issue (about which costs have already been awarded). The parties have consented to having Metrolinx post the agreed upon basic holdback and the determined notice holdback in return for having the subtrade actions against Metrolinx dismissed. The subtrades must still prove their claims for lien in order to be awarded the holdback. Should there be excess holdback in court after this process, it will be paid back to Metrolinx. Metrolinx, in turn, did not limit its defence to the holdback issue. It challenged the entirety of the subtrade claims, including the timeliness and quantum of the subtrade lien claims, and adopted the Unimac defences in doing so. Those defences remain to be determined.
[31] What has happened in the above noted consent order, though, in my view, is the discontinuance of certain claims by the subtrades as against Metrolinx and the withdrawal of defences by Metrolinx. The subtrades all made two claims against Metrolinx that are presently being discontinued: (1) they all claimed a lien against holdback that was greater than what is presently being posted; and (2) they all claimed damages for unjust enrichment and quantum meruit for the entirety of their claims. This point was not disputed by the subtrades.
[32] Mr. Hersen argued that Trenchline also pursued a separate delay damage claim and breach of contract damage claims against Metrolinx, and that Trenchline discontinued the separate delay damage claim no sooner than at the trial management conference on October 13, 2016. I do not agree. Having reviewed the pleadings in the Trenchline matter, I am satisfied that Trenchline claimed delay related costs as a part of its claim for lien, a claim which has not been discontinued. Outside of its claim for lien, Trenchline pleaded a $30,000 claim against Metrolinx concerning equipment that was detained by the owner. It is undisputed that this small claim was resolved quickly. Trenchline did plead breach of contract damages that were not included in its claim for lien, but these were pleaded as against Unimac, not Metrolinx. Mr. Romanovich did make equivocal statements on these issues at his discovery, but the underlying pleadings were not changed.
[33] Metrolinx, in turn, is abandoning the defences it adopted from Unimac against the entirety of the subtrade lien claims. Mr. Hersen argued that Metrolinx is not withdrawing its defences, as they have yet to be proven by Unimac. I disagree. To make the consent posting order possible, Metrolinx is essentially withdrawing its support of the Unimac position and is agreeing to pay for whatever the subtrades can prove against Unimac that Unimac does not pay up, to the agreed upon limit of the holdback.
[34] Normally, such discontinuances and withdrawals trigger costs entitlement for the opposite parties; see Rules 23.05 and 23.06. However, that would not be appropriate here. In my view, the abandonment of these respective positions by the parties forms the essential quid pro quo behind the consent order that I made at the outset of the argument. The subtrades are giving up their claims for more holdback, unjust enrichment and quantum meruit in return for Metrolinx abandoning its defences to the subtrade lien claims and paying the agreed upon holdback into court to secure whatever cannot be recovered from Unimac in the eventual lien/bond trial. Therefore, the costs entitlements that normally flow from the abandonment of claims and defences at most off-set each other in this case, and should not form the basis of an award of costs.
[35] Mr. Hersen referred me again to the Soo Mills decision of Justice Whelan to argue that, where an owner takes a position on basic holdback from the beginning of the litigation that is eventually confirmed by the court at trial, the owner has been the “successful” party, and should be awarded costs accordingly. In the case before me, Metrolinx took the position early in the litigation in a response to a section 39 demand for information from Trenchline that Metrolinx’s basic holdback liability was in an amount that is now being paid into court on consent. I, however, distinguish the facts in Soo Mills on this point. In Soo Mills the owner relinquished its claim to the holdback entirely, and paid it into an interest bearing account. In the case before me, Metrolinx did not relinquish its claim to the holdback. Indeed, it challenged the entirety of the lien claimants’ claims throughout, and only now is stepping back from that position to pay the holdback into court.
[36] For the reasons stated, I find no basis on which to award costs on account of a “result.” At best, the result at this point is a mutual abandonment of claims and defences that offset any entitlement to costs. If there is a “result,” it is mixed, and does not merit an award of costs.
(b.2) Conduct:
[37] There is, however, an issue of conduct that tended to lengthen unnecessarily the duration of these proceedings. This is the factor listed in Rule 57.01(1)(e). Messrs, Wiffen, Cosentino and Schmuck made the argument that Metrolinx could have, and should have, paid the basic holdback into court at the outset, which is essentially what the owner in Soo Mills did. The argument was that, had Metrolinx done so and offered to withdraw its defences, the subtrades, with close to 30% of their claims (other than the now dismissed Dalcor claim) secured, would probably have agreed to reduce the issues involving Metrolinx to the notice holdback issue, which could have been dealt with as a trial of an issue without the need for a discovery of Metrolinx. This would have significantly reduced the duration and the costs of the proceedings that related to Metrolinx. Instead, Metrolinx aggressively challenged the entirety of the subtrade claims throughout until the eve of trial.
[38] Mr. Hersen responded that it was the subtrades who lengthened the proceedings involving Metrolinx by relentlessly pursuing the groundless claims against the owner of unjust enrichment and quantum meruit. He made the same argument about the other non-lien claims that he alleged Trenchline was asserting, a point that I have already not accepted. He argued that it was this subtrade strategy of pursuing non-lien claims against the owner that caused Metrolinx to adopt and pursue the Unimac defences to the entirety of the subtrade claims throughout. He also argued that the Metrolinx adoption and pursuit of the Unimac defences to the subtrade claims did not lengthen the proceeding, since Unimac was, and remains, an active defendant in the proceedings.
[39] I find that the subtrades’ argument has merit. The subtrade claims against the owner for recovery due to unjust enrichment and quantum meruit were alternative pleadings that often appear in lien actions. At law, they are difficult claims to prove. They were marginal issues in these proceedings. Very little time was spent in production and discovery on them. I was not made aware of any evidence (other than in the Direct Action) that engaged those claims. In my view, Metrolinx could have ignored them in devising its strategy. It could have posted the admitted basic holdback shortly after the pleadings and the Scott Schedule, and offered to reduce the issues involving the owner to the notice holdback claim in the Trenchline action. Had Metrolinx done so, the notice holdback trial of an issue could have taken place much earlier, and, indeed, before discoveries. I recall that it was only the issue of the “receipt” of alleged written notices of lien that engaged discovery evidence at the notice holdback trial of an issue. That could have been dealt with through affidavit evidence. The other issues were largely legal in nature and concerned undisputed evidence. I agree with the subtrades that they would have been sorely pressed to accept such an offer, given the risk of adverse costs consequences in keeping the owner in the litigation in the face of such an offer. Instead, Metrolinx did not post the holdback, made no offer to streamline the litigation, and fought the subtrade claims in addition to the Unimac claims.
[40] There is also blame to be shared by the subtrades. They could have, and should have, in my view, offered to discontinue their claims for unjust enrichment and quantum meruit from the outset. The claims were groundless. Metrolinx asked about them at discovery. They should not have been pursued. Having said that, I nonetheless lay the greater blame on Metrolinx for not posting the holdback and for not offering to streamline the litigation. I am simply not convinced that the claims for unjust enrichment and quantum meruit were taken that seriously be either side.
[41] The blame on the subtrades engages CLA section 86(2), namely the section that specifies that, where the least expensive course is not taken, the costs allowed to a party shall not exceed what would have been incurred had the least expensive course been taken. Had the subtrades not persisted in the non-lien claims, I find that Metrolinx would have been more inclined to take the above noted steps. Therefore, the subtrades contributed to the needless costs of this litigation to some extent. This must be recognized in the award.
[42] Having weighed the evidence and the arguments, I have concluded that the subtrades should be paid their partial indemnity costs for the period of production and discovery and thereafter, reduced by 10%.
(b.3) Quantum and reasonableness:
[43] There was no specific criticism of the quantum of the subtrade costs outline and bills of costs. Mr. Hersen complained about the size of the Trenchline bill of costs. I note that Trenchline’s bill of costs was significantly higher than the costs outlines of Cos Shore, Terratechik and Metrolinx. I note also that the Trenchline claim was considerably larger than each of the other two lien claimants, which would explain the greater amount of work that went into to the Trenchline litigation. While the Trenchline partial indemnity claim exceeds that of Metrolinx by over $30,000, I am not prepared to conclude that the claim is unreasonably excessive. The Trenchline claim for lien is composed of many aspects including some that pertain to delay. This makes the claim more complex than the others. Furthermore, it has been recognized that a plaintiff will spend more time than a defendant in pre-trial proceedings; see Canada National Railway v. Royal & Sun Alliance Insurance Co. of Canada, (2005) 2005 CanLII 33041 (ON SC), O.J. No 3931 (Ont. Sup.Crt.) at paragraph 10. As to the other two subtrade costs claims, I note also that curiously the Cos Shore costs outline is less than the Terratechnik bill of costs, despite the fact that the Cos Shore claim is considerably larger than the Terratechnik claim. Mr. Cosentino explained this disparity by his conservative approach to preparing the Cos Shore costs outline. I have decided not to reduce the subtrade costs outlines on account of inappropriate or excessive charges, or general unreasonableness.
[44] The Trenchline bill of costs shows a partial indemnity amount of $34,040 for the work of production and discovery. It also shows a disbursement of $4,457 for examinations and transcripts. Both of these amounts will be awarded. There is a partial indemnity amount shown for the motion for the judgment of reference in this matter and pre-trial attendances of $10,382.50. I have decided to award $7,000 of this amount for the work spent by Trenchline on pre-trials in this action during and after discoveries. These figures are not inclusive of HST. Adding the HST produces a total for these three figures of $51,422.91. The final calculation is as follows: $51,422.91 x 0.90 = $46,280.62. I award Trenchline $46,500 in partial indemnity costs as against Metrolinx.
[45] The Cos Shore costs outline shows a partial indemnity amount of $474.50 for preparing the discovery plan and the affidavit of documents, a partial indemnity amount of $5,593.50 for fees concerning discoveries, and an amount of $975.68 for disbursements relating to discoveries. These amounts total $7,046.68. Adding the HST produces the figure of $7,962.74. The final calculation is as follows: $7,962.74 x 0.90 = $7,166.47. I award Cos Shore $7,200 in partial indemnity costs as against Metrolinx.
[46] The Terratechnik bill of costs shows a partial indemnity amount of $4,220.55 for production and discovery, and the partial indemnity amount of $10,121.98 for pre-trials and the discovery plan. I will award the first amount and, following the analysis of the Trenchline bill of costs, $7,000 of the second amount. Adding HST to the total of the two figures, $11,220.55, produces a total of $12,679.22. The final calculation is as follows: $12,679.22 x 0.90 = $11,411.30. I award Terratechnik $11,500 in partial indemnity costs as against Metrolinx.
[47] I find these awards “fair and reasonable” in the circumstances; see Boucher v. Public Accoutants Council (Ontario), 2004 CanLII 14579 (ONCA) at paragraphs 26 and 37. The Trenchline award is about 52% of its partial indemnity claim; the Cos Shore award is about 62% of its partial indemnity claim; the Terratechnik award is about 43% of its partial indemnity claim. These are reasonable awards given my comments on the issues of result and conduct, and the fact that Trenchline and Cos Shore counsel provided the bulk of the argument.
[48] Therefore, Metrolinx must pay Trenchline $46,500 in costs, Cos Shore $7,200 in costs, and Terratechnik $11,500 in costs, for a total of $65,200 in costs. This must be paid in 30 days. I dismiss the Metrolinx claim for costs.
IV. CONCLUSION
[49] For the reasons stated, I do not require that Metrolinx post security for prejudgment interest for the holdback. However, Metrolinx must pay costs to Trenchline in the amount of $46,500, to Cos Shore in the amount of $7,200, and to Terratechnik in the amount of $11,500. This must be done in 30 days from the date of this order.
[50] Therefore, the final version of my order concerning the issues on this motion, other than the costs of this motion, is as follows:
Order on consent that, upon payment by Metrolinx into court of the determined holdback (basic and notice), namely $677,896.02, the lien claims and certificates of action of Trenchline, Cos Shore, Terratechnik, Direct, Dick, Calendon and Stephenson’s are vacated and the actions of Trenchline, Cos Shore, Terratechnik, Dick, Calendon and Stephenson’s as against Metrolinx are dismissed. Any excess holdback in court after the result in the lien/bond trial will be returned to Metrolinx. Metrolinx must pay costs of $46,500 to Trenchline, $7,200 to Cos Shore and $11,500 to Terratechnik within 30 days from date of this order. Metrolinx is not required to post prejudgment interest for the holdback.
The issue of costs in the Direct Action as between Direct and Metrolinx is deferred on consent to the Direct unjust enrichment trial. The issue of prejudgment interest on this unjust enrichment claim is similarly deferred.
In light of the dismissal of the Unimac Lien Action against Metrolinx and the Dalcor Action, the Unimac and Dalcor lien claims and certificates of action are discharged and vacated.
Elimi has 5 days from the date of service of my written reasons on this motion, which can be served by facsimile transmission, to notify Metrolinx in writing of its intention to proceed to prove its lien claim, failing which its claim for lien will be deemed discharged and its action dismissed. Should Elimi notify Metrolinx as ordered, it must immediately arrange a conference call with me to obtain interlocutory orders in order to get ready for the scheduled trial. Mr. Hersen must serve these reasons on counsel for Elimi forthwith, and must bring this order to the attention of counsel for Elimi in his covering letter or email.
[51] At the end of the argument on December 7, 2016, I gave the parties three additional days to serve and file costs outlines concerning the costs of this motion. Most have done so.
[52] Cos Shore’s costs outline shows partial indemnity costs of $5,699.25 and substantial indemnity costs of $8,248.50. Direct’s costs outlines shows partial indemnity costs of $14,249.54, substantial indemnity costs of $16,844. 58, and actual costs of $19,053.73. Terratechnik’s costs outline shows an amount of $3,510. I have no record of receiving a costs outline from Trenchline.
[53] Metrolinx delivered a costs outline in the Cos Shore Action showing an amount of $4,600.69. It delivered a costs outline in the Direct Action showing an amount of $7,045.69. It delivered a costs outline in the Terratechnik Action showing an amount of $4,600.69. It delivered a costs outline in the Trenchline Action showing an amount of $5,650.69.
[54] If the parties cannot agree as to a costs award, written submissions in this regard may be submitted. Those claiming costs of this motion must serve and file their written submission of no more than two pages concerning same on or before January 13, 2017. Responding written submissions of no more than two pages must be served filed on or before January 27, 2017. Reply submissions must be served and filed on or before January February 1, 2017.
DATE: December 30, 2016 __________________________ MASTER C. WIEBE