COURT FILE NO.: 9140/08
DATE: 2019/01/29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Pollard Windows Inc.
Plaintiff
Santiago H. Costa, for the Plaintiff (Responding Party)
- and -
1736106 Ontario Inc., Andrew Ferri, Niagara Home Builders Inc. carrying on business as Niagara Heritage Homes and Steveco Enterprises Inc.
Kris Hutton, for the Moving Party 1746878 Ontario Inc.
Defendants
COSTS ENDORSEMENT
The Honourable Justice T. Maddalena
[1] I heard this long motion at Welland on December 11, 2018. I provided my ruling to the parties on January 4, 2019. I have now received and reviewed costs submissions from both parties.
[2] The plaintiff Pollard Windows Inc. (responding party) claims costs on a substantial indemnity basis fixed at $15,172.25 inclusive of fees, disbursements and HST.
[3] The moving party 1746878 Ontario Inc. (1746878) submits that Pollard Windows Inc. (Pollard) was not successful on its oral motion for contempt and further submits, therefore, that the amounts pertaining to same should be removed entirely or reduced from its bill of costs.
[4] Pollard was successful on the main motion brought by 1746878. However, Pollard was not successful on its oral motion for a finding of contempt against Andrew Ferri personally.
[5] I noted in my ruling that the motion by 1746878 to stay a finding of its contempt was unnecessary and did not advance the construction lien action. Simply put, the motion should not have been brought.
[6] There were no rule 49 offers to settle exchanged, but I do note that counsel for Pollard wrote to counsel for 1746878 as early as September 24, 2018 stating, in part, as follows:
… To summarize, an Order finding your client in contempt was made. It was appealed by your client. An Order setting the fine for contempt was made, which Order your client has also appealed. There are no mandatory orders made against your client as a result of the finding of contempt that would be stayed if your motion was successful, so what I want to know is, what do you gain by staying the finding of contempt in paragraph 6 of the Order dated March 21, 2018?
[7] I have considered all those factors set out in rule 57.01(1) of the Rules of Civil Procedure.
[8] Further, in the assessment of costs, I have noted and considered those principles enunciated in the case of Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).
[9] In addition, I find, after a review of the bill of costs of the plaintiff/responding party, the hourly rates charged by counsel for the responding party are appropriate and I also note that the bulk of the hours and work performed pertained to counsel called to the Bar in 2013.
[10] Taking into consideration all of the circumstances, I do not find this a case for awarding substantial indemnity costs. One of the relevant factors for this is the failed oral motion for contempt brought by Pollard.
[11] However, I do order partial indemnity costs to Pollard and I fix those costs payable in the amount of $11,000 all inclusive.
Order Made
[12] The following order is made:
- 1746878 Ontario Inc. shall pay costs to Pollard Windows Inc. fixed in the amount of $11,000 all inclusive, payable within 30 days.
Maddalena J.
Released: January 29, 2019
COURT FILE NO.: 9140/08
DATE: 2019/01/29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Pollard Windows Inc.
Plaintiffs
- and –
1736106 Ontario Inc., Andrew Ferri, Niagara Home Builders Inc. carrying on business as Niagara Heritage Homes and Steveco Enterprises Inc.
Defendants
COSTS ENDORSEMENT
Maddalena J.
Released: January 29, 2019