Pollard Windows Inc. v. 1736106 Ontario Inc., 2018 ONSC 2268

CITATION: 2018 ONSC 2268

COURT FILE NO.: 9140/08

DATE: 2018-04-09

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Pollard Windows Inc., plaintiff

AND: 1736106 Ontario Inc., Andrew Ferri, Niagara Home Builders Inc. and Steveco Enterprises Inc.

BEFORE: Mr Justice Ramsay

COUNSEL: Santiago Costa for the plaintiff Kris Hutton for 1746878 Ontario Inc.

ENDORSEMENT

[1] The plaintiff moved successfully to cite 1746878 Ontario Inc. (“the corporation”) for contempt of court and for orders designed to allow it to proceed with sale of a house to satisfy a construction lien debt: 2018 ONSC 1924. The plaintiff moves for full indemnity for its costs, fixed at $9,171.05, jointly and severally against 1746878 and Kevin Creighton, who broke into the property and resumed possession after being moved out by the sheriff under previous court orders.

Quantum

[2] The bill of costs seems reasonable to me and well within the contemplation of anyone who was familiar with the motion and the work that would be involved. Andrew Ferri, the corporation’s “consultant” made this an expensive motion to prosecute. He got an adjournment on agreeing to a subsequent date, then reneged on the agreement. He has deliberately sewn confusion by keeping his role unclear. He acts for the corporation when it suits him, but denies responsibility for his actions. What is clear is that in the litigation he was acting for the corporation until the hearing itself when the corporation was represented by Mr Hutton, who, I infer, took his instructions from Ferri.

Scale of indemnity

[3] The responding corporation through Mr Ferri deliberately contravened the referee’s orders and my order of January 13, 2017. The corporation is responsible for Mr Ferri’s reprehensible actions. He was at least its agent. Full indemnity is required to vindicate the integrity of the administration of justice.

Mr Creighton’s liability

[4] Mr Creighton was not involved in the motion. I do not think I can order costs against him at this point.

1746878’s liability

[5] Mr Hutton submits that 1746878 “should not be exposed to costs for a motion in which it was not served nor attended in its corporate capacity with a lawyer as per Rule 15.01 of the Rules of Civil Procedure.”

[6] At the outset of the hearing Mr Hutton identified himself as counsel for 1746878 Ontario Inc. and identified Mr Ferri as its principal. As to the latter point he was contradicted by Mr Ferri, who said that he is a consultant. The corporate records do not mention Mr Ferri as a director or shareholder. Nevertheless it is obvious that he is its agent and that he instructed Mr Hutton. To deny that 1746878 was served, when as a result of serving Mr Ferri the corporation hired a lawyer to respond to the motion, and the lawyer appeared in court to argue the motion, is simply to continue the game playing with which the plaintiff has been confronted for a decade.

[7] Only 1746878 had an interest to argue at the motion. It was the proper party, it had notice and it defended the motion.

Order

[8] I order 1746878 Ontario Inc. forthwith to pay costs to the plaintiff fixed at $9,171.05. If necessary, the plaintiff is entitled to recover these costs from the sale of the house.

J.A. Ramsay J.

Date: 2018-04-09