CITATION: Schembri v. 1581780 Ontario Inc., 2017 ONSC 719

COURT FILE NO.: C-42-11

DATE: 2017-01-30

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Gordon Schembri, Schembri Financial Limited, Leaf Construction Management Limited Inc. and 1784652 Ontario Inc. - Plaintiffs

AND:

1581780 Ontario Ltd., 1604909 Ontario Inc., 359 King Ontario Inc., Jameshill Developments Limited, Maple Hill Creek Apts. Inc., National Rent-All Inc., Oxford & First St. Inc., Simcoe & Eastwood Ave. Inc., Terra-Tec Excavating, The Shores Ltd., The Spruce Street Lofts Inc., Al Way and Steve Farlow Trustees of the Way Family Trust, Faye Patterson, Al Way, Jamesway Construction Corporation, Kinglsey Financial Inc. and Premier Project Consultants Ltd. – Defendants

AND RE: Al Way, Jamesway Construction Corporation, Kingsley Financial Inc., Triumph Financial Holdings Inc., 1725030 Ontario Inc. and Premier Project Consultants Ltd. – Plaintiffs by Counterclaim

AND:

Gordon Schembri, Schembri Financial Limited, Leaf Construction Management Inc. and 1784652 Ontario Inc.

BEFORE: The Honourable Mr. Justice J. W. Sloan

COUNSEL: Jonathan Kulathungam - Counsel, for the Plaintiffs Heath Whiteley - Counsel, for the Defendants

HEARD: September 21 & 22, November 22 & 24, & December 21, 2016

Costs ENDORSEMENT

[1] The plaintiffs seek full indemnity costs in the amount of $136,663.01, alternatively $94,468.81 on a substantial indemnity basis and in the further alternative $75,550.91 on a partial indemnity basis.

[2] In the plaintiffs’ submissions they have summarily reviewed some of the highlights from my endorsement.

[3] As part of his response, Mr. Way asserts that the motion to compel him to comply with his undertakings was brought to delay producing the plaintiff for discovery.

[4] It is my recollection that during the course of this action to date, it was discussed on more than one occasion that the plaintiff (in this case) under the rules may complete his examination before being examined by the defendant. This includes undertakings being answered and further examinations arising out of the undertakings being completed.

[5] Therefore, Mr. Way had it in his power to speed up his ability to examine Mr. Schembri by complying with his undertakings, at which time he would have been in a position to serve a notice of examination and, if necessary, have it enforced by court order.

[6] As set out in my endorsement of December 23, 2016, Mr. Way chose a different route.

[7] Mr. Way is no stranger to litigation, he is well aware that undertakings are to be fulfilled and court orders are to be followed.

[8] After considering the submissions of both parties I order that the defendants shall pay costs inclusive of disbursements fixed in the amount of $94,468.81 payable within 45 days.

Justice James W. Sloan

Date: January 30, 2017