Court File and Parties
Court File No.: 11018/16 (Welland) Date: 2019/06/21
Superior Court of Justice – Ontario
Re: Ralph Mastracci c.o.b. as Bosco Roofing and Sheet Metal v. 1882877 Ontario Inc. et al
Before: M. J. Donohue, J.
Counsel: Ruzbeh Hosseini, for the Plaintiff and Defendant by Counterclaim Duncan Macfarlane Q.C., for the Defendant and Plaintiff by Counterclaim
Heard: In writing
COSTS ENDORSEMENT
[1] Further to my decision of May 16, 2019, I invited the parties to make written submissions on costs and payment of funds out of court.
[2] I have considered those submissions and my decision is as follows:
Background
[3] This litigation began in late 2016 and culminated in a four-day trial in the winter of 2018/19.
[4] The issue was whether the plaintiff roofer should be paid for their roofing job. In the counterclaim the issues were whether the roofer should pay for the costs of further roofing that was done; whether the roofer should be responsible for delay costs in the project’s completion; and whether the roofer should pay for property damage claims related to water damage. The last counterclaim of property damage was not pursued at trial.
General Principles
[5] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that costs are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid.
[6] Rule 57.01 of the Rules of Civil Procedure identify the factors a court may consider when exercising its discretion to award costs:
57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(0.a) the principle of indemnity, including, where applicable, 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;
(0.b) 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;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and
(i) any other matter relevant to the question of costs.
[7] Rule 49.13 provides as follows:
49.13 Despite rules 49.03, 49.10 and 49.11, the court, in exercising its discretion with respect to costs, may take into account any offer to settle made in writing, the date the offer was made and the terms of the offer.
[8] Costs generally follow the event. The successful litigant is generally entitled to their costs.
Consideration of Rule 57.01 Factors
[9] In the final analysis I concluded that net of the plaintiff roofer’s claim for payment of their contract, the defendant, 188, was owed $22,366 for remediation work.
[10] In strict monetary terms 188 was the successful party.
[11] Other considerations are that 188’s claim of $84,750 was set off by the Bosco Roofing’s claim of $67,683. 188’s claim for delay costs of $34,975 was dismissed. Further, 188’s claims for property damage of roughly $40,000 were abandoned at trial. I note that Bosco roofer’s expert evidence was largely aimed at defending that property damage claim which was not pursued by 188.
[12] 188 did not serve any offers to settle the matter. Offers to settle by Bosco Roofing were for 188 to pay the roofer $52,000 and later $42,000. These did not approach the actual result obtained in the trial.
[13] Both counsel worked hard, cooperatively, and efficiently to accomplish the trial in as economical and a timely way as possible.
Parties’ Position on Costs
[14] Counsel for 188 consider themselves the successful party. They seek partial indemnity costs of $25,324 plus disbursements of $11,726 for a total of $37,050. Their actual costs were closer to $50,000.
[15] Counsel for Bosco Roofing submitted that it was a mixed result and no costs should be paid. Their actual costs in pursuing their claim and defending against 188’s claims were in the area of $150,000.
[16] Counsel for Bosco Roofing refers the court to rule 57.05. Where a plaintiff recovers an amount within the monetary jurisdiction of the Small Claims Court, the court may order that the plaintiff shall not recover any costs. They urge the court to use its discretion to award no costs.
Analysis
[17] The result achieved by 188 is in the monetary jurisdiction of the Small Claims Court. Lien claims are to be brought in Superior Court pursuant to s. 50(1) of the Contruction Lien Act, R.S.O. 1990, c. 30. On motion, if the action is for an amount within the monetary jurisdiction of the Small Claims Court a judge may refer the whole action or any part of it for trial to the Small Claims Court deputy judge, pursuant to s. 58 of the Act. I am not aware that either party sought a motion to move the matter to the lower court.
[18] The competing claims of each party were properly in the Superior Court jurisdiction but ultimately did not warrant the time, effort and cost of proceedings in Superior Court.
[19] It is apparent that the parties should have made significant compromises to resolve their claims outside the courtroom or made realistic rule 49 offers.
[20] I am persuaded that as this is the type of case where the resulting success is mixed and the actual monetary payment was extremely modest when set off with the conflicting claim, that no costs should be paid.
[21] In my discretion, I order no costs payable.
Payment Out of Court of the Lien and Costs
[22] When Bosco Roofing filed this construction lien claim for $67,683 the defendant 188 paid the lien amount into court, as well as costs of $16,920.77.
[23] As my judgment concludes no funds are owed to Bosco Roofing the funds may be paid out following any decision on appeal or on the expiry of the appeal period, whichever occurs first. The funds may then be remitted to 188’s counsel in trust.
M. J. Donohue, J. DATE: June 21, 2019