Citation: Gillham v. Lake of Bays et al, 2017 ONSC 6625
COURT FILE NO.: CV 13-90
DATE: 20171103
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jack Gillham and Heather Gillham, Plaintiffs (Respondents on Motion),
AND:
The Corporation of the Township of Lake of Bays, Defendant (Applicant on Motion)
Royal Homes Limited, Defendant (Applicant on Motion)
J.D. Mackay o/a J.D. MacKay Construction, Defendant, (Party to Pierringer Agreement with Plaintiffs)
BEFORE: E.J. Koke
COUNSEL: David Morin, Counsel, for the Plaintiffs (Respondents), Jack and Heather Gillham
David Thompson, Counsel for the Defendant (Applicant), Royal Homes Limited
Brian Grant, Counsel for the Defendant, the Corporation of the Township of Lake of Bays
HEARD: September 28, 2017
ENDORSEMENT on Costs
[1] The defendants, Royal Homes Limited and the Corporation of the Township of Lake of Bays brought a motion for summary dismissal of the plaintiffs’ action as against them on the basis that the plaintiffs failed to commence the action before the expiry of the applicable two-year limitation period. The defendant J.D. MacKay had settled with the plaintiffs by way of a so-called “Pierringer Agreement”.
[2] Notwithstanding the fact that I found that the plaintiffs appeared to have a strong prima facie case in negligence and breach of duty against the defendants, I concluded that the two-year limitation period had expired at the time they commenced their action, and accordingly I found in favour of the defendants.
[3] The defendants are seeking total costs for the action and motion in the amount of $15,000.00 each. These amounts are significantly lower than the partial indemnity costs relating to the action and the motion, which the defendants have assessed at $36,104.93 and $33,658.50 respectively.
[4] I can only assume that the defendants have heeded the comments in the final paragraph of my decision which are as follows:
- In considering costs, I trust that the applicants will take into consideration the usual factors set out in Rule 57 of the Rules of Civil Procedure, but will also consider the fact that the respondents’ circumstances are very unfortunate. It remains my view that absent the provisions of the Limitations Act, the respondents appear to have a strong prima facie case in negligence and breach of duty against the defendants.
[5] The plaintiffs submit that the defendants unnecessarily delayed the bringing of their motion, and point out that at no time during the course of the litigation did the defendants make an offer to settle the case. They also point out that in the circumstances of this case it is important to balance the indemnity principle with the fundamental objective of access to justice and the overriding principle of reasonableness.
[6] The plaintiffs’ position is set out in the concluding paragraph of their submissions of costs as follows:
- The plaintiffs submit that, in the event that this court finds that costs should be payable on the defendants’ motion, an appropriate and proportionate measure of partial indemnity costs payable for both the motion and the action, would be in the range of $10,000.00 for each defendant, plus disbursements incurred to close of pleadings and on the motion itself.
[7] I have considered the cost submissions filed by the parties, and I have taken into account the factors enumerated under Rule 57, including the time spent, the result achieved, and the complexity of the matters, as well as the application of the principle of proportionality.
[8] In addition, I have considered the principles set forth by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario(2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) and Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.), specifically that the overall objective of fixing costs is to fix an amount that is fair and reasonable for an unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant.
[9] I conclude that an award of costs in the amount claimed by the successful parties to the motion meets the objectives and principles set out in the Rules and the case law, and accordingly order that the Plaintiffs pay costs of $15,000.00 incl. to each of the defendants.
E.J. Koke SCJ
Released: November 3, 2017