Court File and Parties

COURT FILE NO.: 15 55285 A1 DATE: 2019-07-29 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HALTON STANDARD CONDOMINIUM CORPORATION NO. 550, Plaintiff AND: DEL RIDGE (APPLEBY) INC., DEL RIDGE HOMES INC., and THE CORPORATION OF THE CITY OF BURLINGTON, Defendants

BEFORE: The Honourable Mr. Justice Robert B. Reid

COUNSEL: D. A. Schmuck, Counsel, for the Plaintiff P. H. Starkman, Counsel, for the Defendants, Del Ridge (Appleby) Inc., and Del Ridge Homes Inc. M. Nguyen, Counsel, for the Defendant, The Corporation of the City of Burlington

COSTS SUBMISSIONS RECEIVED: July 5, 2019

Decision on Costs of Motion

Background:

[1] The defendants have brought a summary judgment motion against the plaintiff. The plaintiff filed three affidavits in response.

[2] The defendants objected to the contents of the plaintiff’s three affidavits and, in advance of the summary judgment motion, sought an order striking out two of the affidavits and parts of the third.

[3] The summary judgment motion is based on a limitations issue which in turn focusses on the discoverability of alleged construction deficiencies.

[4] The details of the motion decision are found at 2019 ONSC 3084, dated May 21, 2019.

Positions of the parties on costs:

[5] The defendants, Del Ridge (Appleby) Inc. and Del Ridge Homes Inc. (collectively “Del Ridge”) seek their costs on a partial indemnity basis in the amount of $13,478.47.

[6] The defendant City of Burlington seeks its costs on a partial indemnity basis in the amount of $2,926.

[7] The defendants assert success in that the plaintiff was unsuccessful in its primary position that the contents of the affidavits were admissible as participant expert evidence.

[8] The defendants note that the remedy granted was not as expressly requested by either party but asserts partial success in having the opinions contained in two of the affidavits struck.

[9] The plaintiff submits that the defendants were not successful in that the basis of the defendants’ submission to have the affidavits struck was not accepted. Further, the plaintiff claims success in requesting that the propriety of the Kousik affidavit be deferred to the judge hearing the summary judgment motion.

[10] The plaintiff seeks partial indemnity costs in the amount of $6,629.82.

[11] In reply, the defendants submit that the time used by the plaintiff to base its claim was increased without explanation from that shown in the Bill of Costs provided to the defendants at the motion hearing.

[12] The defendants are correct as to the increase in the plaintiff’s claim, in that the plaintiff’s attendance at the motions hearing was double counted in the Bill of Costs filed as part of its costs submissions. It is reasonable to include actual time at the hearing (3.5 hours) and additional time spent reviewing the decision and preparing costs submissions. With those adjustments, the corrected request by the plaintiff is for partial indemnity costs inclusive of HST and disbursements in the amount of $4,737.72.

Success:

[13] Success was divided.

[14] The plaintiff argued that the court should not hear the motion, deferring the entire matter to the judge hearing the summary judgment motion. The plaintiff submitted that it is not in the interests of justice to add an additional procedural layer, pre-empting the decision of the trier of fact on the merits.

[15] I declined to strike out any paragraph of the Kousik affidavit, since the deponent was entitled to give evidence of when the plaintiff first became aware of deficiencies. Information received from a professional engineer (referred to in the affidavit) could be relevant to that question.

[16] As to evidence given based on information and belief without attribution, I deferred that question since objection could more properly be made to the judge hearing the summary judgment motion. However, I did decide that determining the matter as to the admissibility of expert evidence by motion was in the interests of justice for the reasons set out in that decision.

[17] I declined the defendants’ request to strike out the Vella and Silano affidavits which referred to expert reports, since the reports were not being relied on by the plaintiff in the summary judgment motion as proof of deficiencies, but only as to what deficiencies were communicated to the plaintiff.

[18] Although extensive submissions were made by all parties as to whether the deponents (and authors of the expert reports) were participant experts or litigation experts, I held that distinction was not important to the decision, on the basis that the reports were not tendered to give expert opinion evidence about the existence of deficiencies.

[19] I did find that the conclusions reached by the deponents (Vella and Silano) that the deficiencies were not discoverable without expert engineering assistance did constitute expert opinions and that the deponents were litigation experts in providing those opinions. Since there was no rule 53.03 compliance, those conclusions were struck.

[20] In summary, the defendants were successful in part in arguing that the court should determine the motion in advance of the summary judgment hearing on the merits. The defendants were not successful in their request for an order that the affidavits of Vella and Silano be struck in their entirety, or that parts of the Kousik affidavit be struck. The defendants were successful in having the conclusions in the Vella and Silano affidavits struck.

Analysis:

[21] I have considered the other factors (in addition to success) set out in rule 57.01 which guide the exercise of the court’s discretion as to costs.

[22] In particular, there is an issue of proportionality, and what each party might reasonably expect in the event of an adverse court order.

[23] There is a significant disparity between the time expended by the Del Ridge defendants as moving party and the plaintiff as responding party. The Bill of Costs of the Del Ridge defendants shows 23.2 hours of lawyer time and 20.6 hours of clerk time. The plaintiff’s Bill of Costs shows 9.6 hours of lawyer time and 8 hours of clerk time.

[24] I accept that a moving party may well spend more time to prepare and present a motion than the responding party. However, a ratio of almost 3:1 seems disproportionate.

[25] If the Del Ridge defendants’ hours are permitted at double that of the plaintiff, the result is 19.2 hours of lawyer time ($6,720) and 16 hours of clerk time ($1,982), plus HST for a total of $9,040. Disbursements were $1,310.63, for a grand total of $10,350.63.

[26] The defendants achieved partial success in the result of the motion. As such, there should be an order of costs payable by the plaintiff to the defendants on a partial indemnity scale, there being no reason to apply the quasi-punitive substantial indemnity scale.

[27] The partial success should be reflected in the costs award.

[28] Therefore, the costs claim which I consider reasonable for the Del Ridge defendants in the amount of $10,350.63 and for the City of Burlington in the amount of $2,926 are reduced by 50 percent to $5,173.32 and $1,463, respectively, inclusive of HST and disbursements.

[29] Costs are payable in any event of the cause.

Reid J.

Date: July 29, 2019