G.M. French Construction Co. Ltd. v Lemay, 2017 ONSC 4098

Court File and Parties

COURT FILE NO.: 15-66495 DATE: 20170630 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: G.M. FRENCH CONSTRUCTION CO. LTD., Plaintiff/Moving Party -and- MICHEL ROBERT LEMAY and JUDY ANN LEMAY, Defendants/Responding Parties

BEFORE: Mr. Justice Robert N. Beaudoin

COUNSEL: Christopher Spiteri, for the Plaintiff/Moving Party Stephane P. Bond, for the Defendants/Responding Parties

HEARD: By written submissions

Costs Endorsement

1On the April 19, 2017, I dismissed the Plaintiff’s motion for summary judgment. The Defendants now seek their costs in the range of $17,000-$19,000 all-inclusive for the costs of the motion. This amount is in line with the Costs Outline provided by the Defendants at the motion. This did not include any preparation time.

2The Defendants submit that the range sought is reasonable and is within the range of the Plaintiff’s expectations given that the range of costs presented by the Plaintiff in its own Costs Outline was between $19,000 and $29,000.

3The Defendants cite rule 57.01(0.b) of the Rules of Civil Procedure which followed the Court of Appeal’s decision in Boucher v. Public Accounts Council (Ontario), 71 O.R. (3d) 291 (CA); which requires the Court to consider the fair and reasonable amount that an unsuccessful litigant can expect to pay.

4Rule 57.03(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and s. 86 of the Construction Lien Act, RSO, 1990, c. C.30 invoke a “pay-as-you-go” approach to interlocutory motions, whereby a successful party is entitled to recover costs within 30 days. The Defendants submit that they are entitled to recover costs in accordance with the usual rule that costs follow the event.

5Moreover, the Defendants submit that the Plaintiff knew or ought to have known that this motion would not be successful given the case law. Given that this was a construction lien matter, the Plaintiff was required to first obtain leave. Despite being put on notice by counsel for the Defendants that leave may not be granted, the Plaintiff proceeded with cross-examination of the Defendants’ deponent and maintained its position on the motion.

6Counsel for the Defendants seeks a further amount of costs in order to prepare these costs submissions.

7Counsel for the Plaintiff asks that the question of costs be deferred to the trial judge or alternatively, they should only be payable in the cause. In the further alternative, the Plaintiff submits that any amount awarded should be for far less than the Defendants claim.

8The Plaintiff relies on case law in submitting that where a motion for summary judgment fails, costs incurred by the Responding Parties which are still alive should be fixed by the trial judge. The principle is that materials produced by the successful party in the motion may ultimately fail at trial and that this would work an injustice.

9The Plaintiff argues that the bulk of the material produced by the defence will be used at trial and that the motion was reasonable in the circumstances. The Plaintiff repeats and relies on arguments presented in support of the motion for summary judgment.

10The Plaintiff also submits that costs should be commensurate with the value of the lawsuit to the parties. The Plaintiff relies on the fact that his initial claim was limited to $69,946.00 and of which only $35,256.14 was at issue in argument of the motion. The Plaintiff adds that the motion was not particularly complex and it was argued under three hours. The Plaintiff submits that the Defendants’ costs, if awarded, should be limited to $3500.

Conclusion

11In preparation for motion, each of the parties prepared Costs Outlines as required by rule 57.01(6) of the Rules of Civil Procedure. Pursuant to its Costs Outline, the Plaintiff indicated that it would be seeking costs of $29,041.89 on a substantial indemnity basis and the amount of $19,610.07 on a partial indemnity basis. For this reason, it is difficult to give any weight to the Plaintiff’s arguments that the Defendant’s costs claim is too high. The Plaintiff should have realized from the outset and, certainly by the time it had received the Defendant’s supplementary motion that the motion for summary judgment was likely to fail. Nevertheless, the Plaintiff pursued the motion for summary judgment and the Plaintiff cannot now complain if it is now required to pay costs. As to the amount in issue, the Defendants’ counterclaim greatly exceeded the amount sought by the Plaintiff.

12I accept that a limited amount of the responding material will be of assistance to the Defendants in preparation for the trial. Their Bill of Costs is reasonable. This is not an appropriate case for an award of costs on a substantial indemnity basis. I accordingly order the Plaintiff to pay the Defendants their costs, which I fix in the all-inclusive amount of $12,000. I further order the Plaintiff to pay them the additional sum of $500 for their preparation of these costs submissions.