Court File and Parties

COURT FILE NO.: CV-12-461795 DATE: 20180718 SUPERIOR COURT OF JUSTICE - ONTARIO

B E T W E E N:

INNOCON AND LAFARGE CANADA INC., Plaintiffs/Defendants by Counterclaim (Appellants)

• and -

DARO FLOORING CONSTRUCTIONS INC. AND ROBERT DAANNINGER Defendants/Plaintiffs by Counterclaim (Respondents)

BEFORE: G. Dow, J.

COUNSEL: Gregory W. Banks for the Plaintiffs/Appellants Angela Assuras, for the Defendants/Respondents

READ: WRITTEN SUBMISSIONS

COSTS ENDORSEMENT

[1] On January 25, 2018, I heard the plaintiffs, Innocon and LaFarge Canada Inc.’s (“Innocon”) appeal of Master Abrams’ decision of February 17, 2017 in which the Master refused Innocon’s request to strike out portions of the defendant, Daro Flooring Constructions Inc.’s (“Daro”) Statement of Defence. There is also a subrogated counterclaim to be consolidated in this action. I released Reasons on March 5, 2018 granting Innocon’s appeal in only one of three areas Innocon sought to demonstrate Master Abrams erred in law.

[2] I tentatively ordered Daro, being partially unsuccessful, pay Innocon the sum of $5,000.00 or a portion of the $9,408.17 Innocon sought as its partial indemnity costs. I did so in recognition of the limited success Innocon had in the appeal. I was alerted by counsel that an Offer to Settle had been made by Daro and the parties wished to make submissions following my decision. As a result, I acknowledged in my Reasons, my disposition of costs was subject to variation and the parties could deliver written submissions clarifying their position on cost to me.

[3] On March 21, 2018, I received the written submissions of counsel for Daro and on March 26, 2018 I received the written submissions of counsel for Innocon. I regret the delay in preparing this Endorsement.

[4] The Offer to Settle by Daro to Innocon proposed the appeal be dismissed without costs. It is undated but there is an Affidavit of Service it was sent by facsimile on July 6, 2017. If the offer was not accepted on or before July 12, 2018 or six days following its receipt, it could only be accepted with payment of full indemnity costs. The offer was open for acceptance until the commencement (presumably of the hearing) of the appeal.

[5] Daro submits it had greater success than Innocon on the appeal. On that basis, Daro seeks reversal of my proposed cost order and that Daro be awarded $11,000.00, inclusive of fees, HST and disbursements.

[6] Counsel for Innocon disagrees with this position. It submits that six days for acceptance of a complete dismissal of its appeal, without costs was too brief to be effective. It further submits that the result achieved was better than acceptance of the offer at any stage.

[7] I agree with counsel for Innocon. The Offer to Settle of Daro is not relevant to the appropriate disposition of costs other than to demonstrate the necessity of Innocon pursuing its appeal. Daro was unwilling to compromise its position other than a brief abeyance in its demand for costs.

[8] Daro sought to reverse my tentative decision on costs with an Offer to Settle that demonstrated its position was, in hindsight, incorrect. I agree my disposition on costs should be varied. I am reinforced in this conclusion by the additional expenditure of time and effort in requiring Innocon to draft its written submissions in response to this request by counsel for Daro.

[9] I conclude that the costs awarded to Innocon ought to be increased from $5,000.00 to $7,500.00 inclusive of fees, HST and disbursements. This amount is ordered payable forthwith.

Mr. Justice G. Dow

Released: July 18, 2018