Court File and Parties
COURT FILE NO.: CV-11-437166
DATE: 20180605
ONTARIO
SUPERIOR COURT OF JUSTICE
In the Matter of the Construction Lien Act, R.S.O. 1990, c. C.30
BETWEEN:
D & M Steel Ltd.
Plaintiff
– and –
51 Construction Ltd. and Jing Yin Temple
Defendants
Adam Wainstock for the Plaintiff
Roy Wise for the Defendant Jing Yin Temple
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] Pursuant to the Construction Lien Act, R.S.O. 1990, c. C.30, the Plaintiff D & M Steel Ltd., a subcontractor, sued 51 Construction Ltd., the general contractor, and Jing Yin Temple (“the Temple”), the owner of the property. The Temple counterclaimed against D & M Steel Ltd. There were crossclaims between the Defendants. The claim, counterclaim, and the crossclaims were referred to Master Albert for a determination and a Report.
[2] After a 10-day trial, the Master held that: (a) 51 Construction and the Temple owed D & M Steel $1,130 for extras under the construction subcontract payable out of the holdback, but the balance of D & M Steel’s contract claims should be dismissed; (b) 51 Construction and D & M Steel were jointly and severally liable to the Temple for delay damages of $7,912.80 including HST for the storage of the roof tiles; (c) 51 Construction and D & M Steel were jointly and severally liable to the Temple for inspection costs of $560; and (d) the balance of the counterclaims and crossclaims should be dismissed. The Master awarded the Temple costs of $52,279.79 allocating $44,437.82 to D & M Steel and $7,841.97 to 51 Construction. (See D & M Steel Ltd. v. 51 Construction Ltd., 2016 ONSC 1335 (Master).)
[3] The Temple moved for confirmation of the Master’s Report subject to a “conditional opposition” that the Master’s Report be varied to grant its counterclaim for $161,027.80. The opposition to confirmation was conditional because if the Master’s Report was confirmed, then the Temple would abandon its opposition to it.
[4] D & M Steel opposed confirmation of the Master’s Report, which is dated June 3, 2016, and it sought a judgment of $153,411.66 inclusive of HST, plus pre-judgment and post-judgment interest against 51 Construction and the Temple.
[5] I dismissed D & M Steel’s motion. (See D & M Steel Ltd. v. 51 Construction Ltd., 2018 ONSC 2171.)
[6] I confirmed the Master’s Report with a variation, and I dismissed the Temple’s conditional opposition to confirmation. I disallowed the judgment against 51 Construction and D & M Steel for delay damages of $7,912.80. In all other respects, the Master’s Report was confirmed.
[7] The Temple now seeks costs of $46,234.83 (inclusive of counsel fees, HST, and disbursements) on a partial indemnity basis or costs of $68,822.96 (inclusive of counsel fees, HST, and disbursements) on a substantial indemnity basis.
[8] D & M Steel seeks costs of $7,369.30 (inclusive of counsel fees, HST, and disbursements) on a partial indemnity basis for the dismissal of the Temple’s conditional opposition.
[9] Because D & M Steel succeeded on one issue that was argued during the hearing of the competing motions and notwithstanding that D & M Steel was not successful on its motion to oppose confirmation of the Master’s Report, it seeks costs of $26,657.56 (inclusive of counsel fees, HST, and disbursements) on a partial indemnity basis for the motion to oppose confirmation.
[10] Further D & M Steel submits that even with the dismissal of its motion opposing confirmation of the Master’s Report, the results of the litigation is that it is the successful party and the costs award must therefore be reversed or set aside as a result. Here, its primary submission is that it was successful in this proceeding and, therefore, entitled to partial indemnity costs fixed in the sum of $50,000 for the hearing before the Master.
[11] I need not detail the explanations of how the parties quantify their costs claims because in my opinion the appropriate award in the circumstances of this case is to order that there be no order as to costs.
[12] Formally speaking, there were two motions before the court; namely: (1) D & M Steel’s motion to oppose confirmation of the Master’s Report; and (2) the Temple’s split-personality motion to confirm the Master’s Report while reserving the right to oppose confirmation should D & M Steel’s motion be granted. Practically speaking, the two motions were argued as a single motion.
[13] Regardless of what formally or practically speaking was before the court, D & M Steel’s aspiration for the outcome was to have Master Albert’s Report overturned and replaced by a judgment in its favor dismissing the Temple’s counterclaim and granting D & M Steel a judgment for $153,411.66 plus costs of $50,000 for the reference hearing, plus the costs of the appeal of the Master’s Report of $34,026.86 ($7,369.30 + $26,657.56).
[14] The result of the appeals from Master Albert’s decision did not remotely come close to achieving D & M Steel’s aspiration. Its motion to oppose confirmation was dismissed, and it achieved the modest success of having the Master’s Report on the Temple’s counterclaim reduced by $7,841.97. The Master’s Report was substantially vindicated, and there is or was no basis or reason to vary her order with respect to costs. Put bluntly, D & M Steel remained the unsuccessful party, and there is no reason in this case to award the unsuccessful party any costs.
[15] Turning to the Temple, it did not succeed on its split-personality motion to confirm the Master’s Report while reserving the right to oppose confirmation of the Report should it not be confirmed. I dismissed the so-called conditional motion, the aspiration of which was to restore a counterclaim of $161,027.80. While the Temple’s confirmation motion was a modest success, that little advance cannot grasp victory from the jaws of the defeat that the Temple’s counterclaim was now being dismissed virtually in its entirety and its split-personality motion was dismissed.
[16] Viewed as a single motion, success was divided and neither party should receive any costs.
[17] Therefore, I make no order as to costs.
Perell, J.
Released: June 5, 2018
COURT FILE NO.: CV-11-437166
DATE: 20180605
ONTARIO
SUPERIOR COURT OF JUSTICE
In the Matter of the Construction Lien Act, R.S.O. 1990, c. C.30
BETWEEN:
D & M Steel Ltd.
Plaintiff
– and –
51 Construction Ltd. and Jing Yin Temple
Defendants
REASONS FOR DECISION - COSTS
PERELL J.
Released: June 5, 2018