Court File and Parties

COURT FILE NO.: 27/17 DATE: 2018 11 19 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Devlan Construction Ltd., Plaintiff and: Westminister Square Ltd., 2345171 Ontario Inc. carrying on business as Guelph Medical Imaging and Coldpoint Capital Corp., Defendants

BEFORE: Justice G.D. Lemon

COUNSEL: Joshua W. Winter, counsel for the Plaintiff, Devlan Construction Ltd. Mauro Marchioni, Counsel for the Defendant 2345171 Ontario Ltd.

HEARD: In Writing

Costs Endorsement

The Issue

[1] On October 9, 2018, I released by judgment granting summary judgment against the defendant in the amount of $105,599.74.

[2] Devlan now seeks costs in the amount of $61,158.24 on a substantial indemnity basis or $50,965.19 on a partial indemnity scale. In response, Guelph Imaging acknowledges that costs are payable but submits that they should be fixed in the sum of $30,000.00.

Authorities

[3] Rule 57.01 of our Rules of Civil Procedure sets out the factors that the court may consider when determining costs. The relevant factors that I should consider here are:

(a) the result in the proceeding, (b) the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer; (c) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed; (d) the amount claimed and the amount recovered in the proceeding; (e) the complexity of the proceeding; (f) the importance of the issues; (g) the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding.

[4] Modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants: Fong v. Chan, (1999), 46 O.R. (3d) 330, at para. 22.

[5] Costs awards, at the end of the day, should reflect “what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties”: see Boucher v. Public Accountants Council for the Province of Ontario, (2004), 71 O.R. (3d) 291, at para. 24.

Analysis

[1] In my written judgment, I dismissed all of the arguments put forward by Guelph Imaging. Essentially, Guelph Imaging required Devlan to prove its case. Devlan did so except to the extent of an insignificant amount. Much of Devlan’s evidence was met with silence from Guelph Imaging.

[2] Guelph Imaging is entitled to require Devlan to prove its case; but that entitlement can come with a cost.

[3] Given the wide range of issues that Guelph Imaging raised but eventually withdrew, Devlan was required to provide detailed accounting for the claim. That takes time and effort.

[4] Taking all of the factors into consideration, I find that Guelph Imaging should pay Devlan costs fixed in the amount of $60,000.00.

Justice G.D. Lemon Date: November 19, 2018