Court File and Parties

COURT FILE NO.: 56341/16

DATE: 2020/03/12

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: CATALINA EXCAVATING INC., Plaintiff

AND:

LJM DEVELOPMENTS (GRIMSBY) INC., Defendant

BEFORE: The Honourable Robert B. Reid

COUNSEL: K. Mitchell, Counsel, for the Plaintiff R. Flom, Counsel, for the Defendant

HEARD: December 12, 2019

COSTS ENDORSEMENT

[1] On December 12, 2019, parties argued a motion brought by the plaintiff for answers to undertakings and refusals. By decision dated December 13, 2019, the plaintiff’s motion was dismissed.

[2] The issues arose in the context of examinations for discovery during construction lien litigation. The plaintiff claimed the sum of $323,436.34 for nonpayment of services and materials supplied to a construction project relating to bulk excavating and soil haulage. The defendant counterclaimed for the sum of $659,781 plus HST.

[3] According to the timetable set out in my endorsement, the parties were to exchange Bills of Costs and provide written submissions if they were unable to resolve the issue of costs of the motion. Those submissions were received in a timely way.

[4] Shortly after the submissions were due, the parties apparently settled the action on a without costs basis. There is a dispute between them about whether the costs provision of the settlement was inclusive of the costs of the December 12, 2019 motion.

[5] The resolution of that dispute is not before me. Therefore, what follows is my decision on costs of the motion which I make without regard to the settlement. The parties can deal with the issue of whether the costs consequences of this decision impose an obligation in addition to the terms of settlement.

[6] I have reviewed and considered the factors applicable to the exercising of the court’s discretion as to costs permitted by s. 131 of the Courts of Justice Act found in rule 57.01 of the Rules of Civil Procedure.

[7] Success is a presumptive factor. The defendant was entirely successful and should be entitled to an award of costs in its favour payable by the plaintiff.

[8] There are no circumstances which justify the quasi-punitive award of substantial indemnity costs. There were no offers to settle. Therefore there will be an award on a partial indemnity basis.

[9] The defendant claims the all-inclusive sum of $5,674.94.

[10] The plaintiff submits that a more appropriate amount is in the range of $4,000. It alleges that some costs claimed by the defendant should have been charged at a rate attributable to a more junior lawyer or law clerk. It questions the need for legal research which was claimed in the amount of 2.5 hours. Further, the plaintiff submits that the attendance fee was high at $1,500 given only an hour of court time for argument.

[11] The plaintiff’s Bill of Costs shows an all-inclusive partial indemnity total of $5,749.13. The plaintiff submits that since it was the moving party, its costs could be expected to be higher than those of the responding party defendant, rather than approximately equal.

[12] The argument of the motion took slightly less than three hours. I agree that a $1,500 attendance fee is high, and therefore reduce the defendant’s claim by $600. As to the other objections, I am not prepared to critique the assignment of work amongst various lawyers and office staff engaged on behalf of the defendant. Nor am I inclined to decide that the relatively modest amount of time spent on research was inappropriate.

[13] The amount at stake in the claim was substantial. The defendant was entitled to object to giving further answers that could well have resulted in additional delay through further attendances for discovery, especially considering that there had already been three prior examinations. The amount of the defendant’s costs claim was proportionate and well within what should have been the plaintiff’s expectations if it was unsuccessful in its motion.

[14] Therefore, for the foregoing reasons, there will be an order for costs of the motion payable by the plaintiff to the defendant fixed in the all-inclusive amount of $5,074.94.

Reid J.

Date: March 12, 2020