Court File and Parties

CITATION: Union Building Corporation of Canada v. Markham Woodmills Development Inc., 2017 ONSC 6351

COURT FILE NO.: CV-16-564599

DATE: 2017-10-25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: UNION BUILDING CORPORATION OF CANADA, Applicant

AND:

MARKHAM WOODMILLS DEVELOPMENT INC. Respondent

BEFORE: LEDERER J.

COUNSEL: Gavin J. Tighe, Bill R. Michelson, for the Applicant

Francy Kussner, Jane Scholes for the Respondent

HEARD: In Writing

COSTS ENDORSEMENT

[1] This endorsement deals with costs. As outlined in the reasons released in answer to this application I have received submissions in writing. I have reviewed them.

[2] The applicant correctly points out that it was entirely successful. Relying on the number of affidavits (7), the number of cross-examinations (5) and the “need” to conduct an examination of a witness pursuant to Rule 39.03, it requests costs on a partial indemnity scale of $89,703.50. As I understand it, but for the fact that its allegation of bad faith was not accepted, the applicant would have sought costs on a substantial indemnity scale.

[3] For its part the respondent believes that the failed allegation of bad faith was sufficiently egregious, that it should overtake the general principle that costs follow the event. The respondent proposes that the court should exercise its discretion and award no costs. In the alternative no cost award in excess of $50,000 should be made.

[4] To my mind much of the submissions made on the motion were not directed to the issue at hand. Within the reasons it is noted that:

The problem with these competing analyses is that while they consider the context and some provisions of the Cost Sharing Agreement they fail to account for the Agreement of Purchase and Sale, which after all is the contract to be interpreted. It is the intention behind the Agreement of Purchase and Sale which is at issue.

[5] Time was spent examining the requirement of severance, and how it should be applied in the particular context. As it is, the decision made reflects not on that question but on zoning and the responsibility to have the rezoning of the property “in full force and effect” at the time of sale.

[6] This understanding did not arise from the submissions made but from the separate consideration by the court. My concern for the award of costs does not stem from the failure of the applicant to establish bad faith or the unnecessary reliance of the respondent on what members of the municipal staff or others might have anticipated independent of the words of the agreement but on the fact that for all the effort made the answer lay in a place the parties, for whatever reason, did not identify.

[7] Moreover it is not clear to me that the applicant should be paid for the costs of two counsel at the hearing of the motion or, as pointed out by counsel for the respondent, for the involvement of a total of four lawyers and two clerks.

[8] The applicant should have its costs but not at the level sought.

[9] I award costs to the applicant as follows: for fees $59, 703.50 + disbursements $8,704.18 = $68,407.68 + HST.

Lederer J.

Date: October 25, 2017