COURT FILE NO.: CV-17-130333 (Newmarket)
MOTION HEARD: 2019 05 24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: QH Renovation & Construction Corp.
v.
2460500 Ontario Ltd., 2466900 Ontario Inc. and Xiaohong Li, also known as Linda Xiaohong Li, also known as Linda Li
BEFORE: MASTER R. A. MUIR
COUNSEL: Paul H. Starkman for the plaintiff
Lena Wang for the defendants
SUPPLEMENTARY REASONS FOR DECISION - COSTS
[1] On May 24, 2019 I heard a motion brought by the defendants seeking a declaration that the plaintiff’s lien had expired. I released my reasons for decision on May 29, 2019. I granted the relief requested by the defendants. I also requested written costs submissions. I have now received and considered those submissions.
[2] The defendants seek their substantial indemnity costs in the amount of $5,930.74. Alternatively, they ask for partial indemnity costs. The defendants argue that they were entirely successful on the motion and that costs should be awarded to the successful parties in accordance with the court’s usual practice. They also point to correspondence sent to the lawyer for the plaintiff citing the relevant authorities and suggesting that the plaintiff reconsider its opposition to the motion.
[3] The plaintiff submits that there is no basis for a costs order on an elevated scale and argues that the costs requested by the defendants are excessive in the circumstances of this motion.
[4] The court’s general authority to award costs as between parties to litigation is found in section 131(1) of the Courts of Justice Act, RSO 1990, c. C.43, which provides that costs are in the discretion of the court. Rule 57.01(1) allows the court to consider the result achieved in the proceeding or motion. This Rule also includes a non-exhaustive list of factors the court may consider when awarding costs.
[5] When dealing with the costs of a motion or other proceeding, the overall objective for the court is to fix an amount that is fair and reasonable for the unsuccessful party who generally must pay the costs of the successful party. See Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (ON CA), [2002] OJ No. 4495 (CA) at paragraph 4 and Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] OJ No. 2634 (CA) at paragraph 26. In Davies v. Clarington (Municipality), 2009 ONCA 722 the Court of Appeal stated as follows at paragraph 52:
Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.
[6] Apart from the operation of Rule 49.10 (offers to settle), elevated costs should only be awarded on the basis of a clear finding of reprehensible conduct. See Davies at paragraph 40.
[7] I see no evidence of reprehensible conduct that would justify an elevated costs order. The plaintiff’s opposition to this motion was understandable given the consent timetable order that established a Rule 48.14 set down date.
[8] I also agree with the plaintiff that the costs requested appear to be excessive for a motion of this nature. The motion was not complex from either a factual or legal perspective.
[9] It is also my view, that a costs sanction must be made given what I view to be the improper without notice appearance on March 22, 2019 and the failure to include a copy of the consent timetable order with that motion material. As I stated in my May 29, 2019 reasons:
One final issue must be addressed. This motion was initially brought without notice to the plaintiff. This is an active and ongoing claim. The plaintiff is represented by counsel. In fact, a contested undertakings and refusals motion was scheduled to be heard in Newmarket on March 25, 2019, the next business day after the plaintiff’s lawyer appeared before me in construction lien ex parte court in Toronto. In my view, it was not appropriate for the defendants, in these circumstances, to have brought this motion without notice. Simply because a statute or rule permits a motion to be brought without notice does not make it appropriate in all circumstances.
In addition, my consent order of May 3, 2018 was not included in the defendants’ evidence. I have determined that the order does not assist the plaintiff in the circumstances of this motion. However, it is obviously relevant evidence that should have been brought to the attention of the court for its consideration on a without notice motion. Without notice motions require full disclosure at all times.
[10] For these reasons, it is my view that the costs order suggested by the plaintiff is fair and reasonable in the circumstances of this motion. The plaintiff shall pay the defendants’ costs of this motion fixed in the amount of $1,695.00, inclusive of HST and disbursements. These costs shall be paid by August 6, 2019.
Master R. A. Muir
DATE: 2019 07 05