CITATION: Unicorr Limited v. Minuk Construction & Engineering Limited, 2017 ONSC 600
COURT FILE NO.: CV-15-521323
DATE: 20170125
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
UNICORR LIMITED, AS TRUSTEE FOR NORMAN JAMES GOTTLIEB and CONTAINER CORPORATION OF CANADA
Plaintiff
– and –
MINUK CONSTRUCTION & ENGINEERING LIMITED O/A MINUK CONTRACTING COMPANY, BEVMIN CONSTRUCTION LIMITED, BEVMIN CONSTRUCTION LIMITED O/A MINUK CONTRACTING COMPANY, FAMIN CONSTRUCTION LIMITED, FAMIN CONSTRUCTION LIMITED O/A MINUK CONTRACTING COMPANY, MINUK CONSTRUCTION & ENGINEERING LIMITED, MINUK CONTRACTING COMPANY LTD. and SANFORD EARL MINUK a.k.a. SANDY MINUK
Defendants
Alan B. Dryer for the Plaintiff
Michael James Reid for the Defendants
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] The Plaintiff, Unicorr Limited, as Trustee for Norman James Gottlieb and Container Corporation of Canada, which I shall refer to collectively as Mr. Gottlieb, sued Malone Given Parsons Ltd. (“MGP”), a land planning consulting firm. In a separate action, Mr. Gottlieb sued Minuk Construction & Engineering Limited, a general manager, project manager, and construction supervision firm. In both actions, Mr. Gottlieb alleged that the Defendants caused him to unnecessarily pay $266,157.22 in development charges to the Town of Richmond Hill.
[2] For the purposes of this costs decision, it should be noted that in Mr. Gottlieb’s action against Minuk Construction, the $266,157.22 in development charges was part of a larger claim of $1.7 million in damages.
[3] MGP and Minuk Construction each brought summary judgment motions to have Mr. Gottlieb’s claim with respect to the development charges dismissed as statute-barred under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.
[4] The parties agreed that the limitation period issue was amenable to being resolved by a summary judgment. Mr. Gottlieb submitted that the Defendants’ limitation period defences should be summarily dismissed. I granted MGP’s and Minuk Construction’s summary judgment motions, and I concluded that Mr. Gottlieb’s claims with respect to the development charges were statute-barred. See Unicorr Limited v. Minuk Construction & Engineering Limited, 2016 ONSC 7350.
[5] In my reasons, I directed that if the parties could not agree about the matter of costs, they could make submissions in writing. Minuk Construction and Mr. Gottlieb could not agree, and Minuk Construction seeks $20,071.63 as a partial indemnity counsel fee for the summary judgment motion plus disbursements of $1,869.84. Inclusive of taxes, Minuk Construction’s claim for costs is $21,941.47.
[6] Mr. Gottlieb submits that the appropriate award to Minuk Construction is $2,104.50, all inclusive.
[7] For the reasons that follow, I conclude that the appropriate award is $17,500 all inclusive.
[8] Mr. Gottlieb’s main argument to reduce Minuk Construction’s costs claim is that the purpose of the summary judgment motions in both actions was to decide just the limitations period issue; however, notwithstanding this purpose, in the run up to and in the argument of the summary judgment motions, Minuk Construction focused on the merits of its substantive defence to Mr. Gottlieb’s claims about the development charges, and therefore Minuk Construction’s contribution to the summary judgment motions was neither necessary nor useful and thus the bulk of its costs were unreasonably incurred.
[9] Mr. Gottlieb suggests that what Minuk Construction ought to have done is to have simply adopted the evidence and argument put forward by MGP, which focused exclusively on the limitations issue. Mr. Gottlieb submits that by focusing only on the limitations issue, the only time that reasonably would have been incurred by Minuk Construction was 1.0 hour to deliver a notice of motion and 4.0 hours for a court attendance for a total fee claim of $1,750 and a disbursement for the court filing fee.
[10] Apart from the fact that Mr. Gottlieb’s suggestion ignores the fact that there were cross-examinations in which Minuk Construction was involved both as an examined and an examining party, for which Minuk Construction is entitled for its reasonable costs regardless of whom took the lead in focusing on the limitation period defences, I do not agree with his suggestion.
[11] Mr. Gottlieb sued Minuk Construction for the development charges, and Minuk Construction was the successful party, and it is entitled to its reasonable costs incurred with respect to the summary judgment motions, which I would assess in accordance with the normal factors that influence the court’s discretion as to costs at $17,500, all inclusive.
[12] Regardless of whether the focus of argument was on a limitation period defence or on a substantive defence, the underlying factual footprint was the same and had to be developed. I do not see any needless expense. On most motions, there are evidentiary and legal points that in hindsight were unnecessary or unsuccessful but costs awards are awarded with respect to the outcome of the motion, not piecemeal, issue by issue.
[13] Minuk Construction was being sued for $266,157.22 and it was successful on its summary judgment motion to have that claim dismissed. It would have been in the reasonable expectations of Mr. Gottlieb that if he was unsuccessful in defeating the limitation period defence that he would incur an exposure to partial indemnity costs of $17,500 all inclusive of legal fees, disbursements, and taxes.
[14] Order accordingly.
Perell, J.
Released: January 25, 2017
CITATION: Unicorr Limited v. Minuk Construction & Engineering Limited, 2017 ONSC 600
COURT FILE NO.: CV-15-521323
DATE: 20170125
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
UNICORR LIMITED, AS TRUSTEE FOR NORMAN JAMES GOTTLIEB and CONTAINER CORPORATION OF CANADA
Plaintiff
– and –
MINUK CONSTRUCTION & ENGINEERING LIMITED O/A MINUK CONTRACTING COMPANY, BEVMIN CONSTRUCTION LIMITED, BEVMIN CONSTRUCTION LIMITED O/A MINUK CONTRACTING COMPANY, FAMIN CONSTRUCTION LIMITED, FAMIN CONSTRUCTION LIMITED O/A MINUK CONTRACTING COMPANY, MINUK CONSTRUCTION & ENGINEERING LIMITED, MINUK CONTRACTING COMPANY LTD. and SANFORD EARL MINUK a.k.a. SANDY MINUK
Defendants
REASONS FOR DECISION - COSTS
PERELL J.
Released: January 25, 2017