Court File and Parties

COURT FILE NO.: CV-17-569174 MOTION HEARD: 2018 04 24

ONTARIO – SUPERIOR COURT OF JUSTICE

Rajiv Kumar Sawhney and Strategic Structural Solutions Inc.

v.

Arvin Peter and Dejan Markovic

Antonio Conte for the proposed intervenor, Maple Drywall Inc.

Sukh Jagpal for the defendants

SUPPLEMENTARY ENDORSEMENT

Master R.A. Muir -

[1] This supplementary endorsement is in relation to a motion brought by Maple Drywall Inc. ("Maple") pursuant to Rule 13.01 of the Rules of Civil Procedure, RRO 1990, Reg. 194 (the "Rules") for an order granting it leave to intervene in this action. I released my reasons for decision on April 24, 2018. I granted the relief requested by Maple. I also requested submissions on the issues of costs and the scope of Maple's intervention. I have now received and considered those submissions.

[2] Maple submits that it was the successful party and is entitled to costs in accordance with the court's usual practice. Maple seeks its partial indemnity costs of $4,490.56.

[3] The defendants submit that Maple's motion materials and submissions led them to believe that Maple was making a claim against the defendants when in fact Maple's only claim is against the plaintiffs and it is simply seeking payment of trust monies. If they had known this in advance they would not have opposed. The defendants ask for their costs of this motion in the amount of $3,757.25. Alternatively, the defendants take the position that Maple's costs are excessive.

[4] I agree with Maple's position. A review of its notice of motion and supporting affidavit makes it clear that Maple was only seeking leave to intervene in order to assert its claim to trust funds. It does not seek to make a claim against the defendants. It is therefore my view that Maple is entitled to costs as the successful party.

[5] However, I agree with the defendants that the costs requested by Maple are excessive for a motion of this nature. Maple prepared a motion record with a five paragraph affidavit. It did not prepare a factum. Despite this, its costs are greater than the defendants' costs, who prepared a responding record and a factum. The costs requested by Maple should be reduced accordingly.

[6] I have therefore concluded that it is fair and reasonable for the defendants to pay Maple's costs of this motion fixed in the amount of $2,000.00 inclusive of HST and disbursements. These costs shall be paid by June 29, 2018.

[7] The parties are in general agreement with respect to the scope of Maple's intervention. The defendants submit that Maple's examination of the defendants should be limited to three hours per defendant. I agree. Maple's involvement is limited insofar as the defendants are concerned. Its right to examine the defendants shall be limited accordingly.

[8] In accordance with this ruling, and the agreement of the parties, the scope of Maple's intervention shall be as follows:

(a) Maple shall be entitled to copies of all affidavits of documents and productions from all parties;

(b) Maple shall be given notice of all motions and shall be included in all settlement discussions and shall be entitled to respond;

(c) Maple shall be entitled to participate in any oral examinations for discovery and cross-examinations on affidavits, subject to a three hour limit on its examination of each defendant; and,

(d) Maple shall be entitled to participate at trial and cross-examine witnesses, subject to further order of the trial judge.

Master R.A. Muir

DATE: 2018 05 30