COURT FILE NO.: 15-55285-A1
DATE: March 31, 2020
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Halton Standard Condominium Corporation No. 550, Plaintiff
A N D:
Del Ridge (Appleby) Inc., Del Ridge Homes Inc., and The Corporation of the City of Burlington, Defendants
A N D:
Peto MacCallum Ltd. and Keith McAlpine Architects, Third Parties
BEFORE: The Honourable Justice A. Skarica
COUNSEL: Derek Schmuck, for the Plaintiff Paul Starkman, for the Defendants, Del Ridge (Appleby Inc.) and Del Ridge Homes Mai Nguyen, for the Defendant, City of Burlington Philip Garbutt, for the Third Party, Peto MacCallum Charles Simco, for the Third Party, Keith McAlpine Architects.
COST ENDORSEMENT
OVERVIEW:
[1] The defendant Del Ridge companies completed a condominium project in the city of Burlington in 2009. There were numerous alleged defects in the construction of the condominium, including leaks in the garage. The plaintiff subsequently sued the defendants in 2015. The defendants launched a summary judgment motion arguing that the plaintiffs were barred from pursuing the lawsuit due to the applicable provisions of the Limitations Act. In a lengthy oral judgment, delivered on February 4, 2020, the summary judgment application, brought by the defendants, was dismissed with costs awarded to the plaintiff. The third parties did not participate in the motion.
ISSUE:
[2] What is the appropriate costs award to be paid to the plaintiff by the defendants?
BACKGROUND FACTS:
[3] The plaintiff served upon the defendant an offer to settle the motion on October 31, 2018. The gist of the offer was that the defendants were to abandon their motion and all parties were to pay their costs. The plaintiff did better than their offer as the motion was dismissed with costs payable to the plaintiff by the defendants.
LAW:
[4] Accordingly, Rule 49.10 (1) and Rule 49.02(2) apply, and the plaintiff is entitled to partial indemnity costs prior to October 31, 2018 and substantial indemnity costs thereafter. Virtually all the costs claimed by the plaintiff were incurred after October 31, 2018.
[5] The costs considerations that are relevant to the costs award in this proceeding are outlined in Rule 57.01. Of relevance are: subsection (a) – amounts claimed and recovered, subsection (c) – complexity of the proceeding and subsection (d) – importance of the issues.
[6] The cases are not clear what the exact appropriate percentage of substantial indemnity should be. Generally, substantial indemnity awards are in the range of 80 to 90 percent of the total costs – see for example Alan Webster Family Trust v. Midland Walwyn Capital Inc., [2005] O.J. No. 2731 (C.A.) where the award was approximately 85 percent. I will fix substantial indemnity costs at 85 percent of the total lawyer’s costs incurred by the plaintiff and then add in HST and disbursements.
APPLICATION OF LAW TO FACTS:
[7] The plaintiff seeks re-imbursement for $49,934.92. inclusive of HST and disbursements. The defendants point out that this figure is the total actual cost and not a figure calculated on a substantial indemnity basis. Exclusive of HST and disbursements, the total actual amount is $42,018.50. 85 percent of that total is $35,715.73. Adding in HST of $4643.04 and disbursements of $2,454.02 produces an amount of $42,812.79 as a fair amount calculated on a substantial indemnity basis.
[8] As pointed out by the plaintiff, the claim involves approximately $2,000,000 in damages. The material before me was very voluminous. The plaintiff’s affidavit sworn by John Kousik was 30 pages long and included 138 paragraphs with multiple exhibits spanning many pages. John Kousik’s discovery transcript was 401 pages in length and included responses to 1121 questions. The defendants’ motion record included two lengthy volumes with numerous exhibits. The defendants’ main witness, Dave de Sylva, responded to 873 questions in a 169-discovery transcript. It took me over 40 hours to read and examine all the material in the preparation of my ruling.
[9] Accordingly, the defendants’ claim, that the total of 30 hours spent by Mr. Schmuck and his assistant in order to prepare for the motion was excessive, has no merit given the volume of material filed, the complexity of the motion, the amounts involved, and the fact that the summary judgment application sought to end the litigation upon the hearing of the motion.
[10] Further, given the complexity and volume of the materials, it was reasonable for Mr. Schmuck to have his assistant attend at the motion.
CONCLUSION:
[11] Accordingly, I fix costs at $42,812.79, payable to the plaintiff by the defendants, on a substantial indemnity basis regarding the summary judgment motion.
[12] At the present time, pursuant to orders of Justice Whitten and myself, regarding other motions in this litigation, the plaintiff owes the defendants $26,879.89. As all the defendants were involved in the summary judgment motion, the costs are ordered to be paid on a joint and several basis. Accordingly, it is equitable and fair, that the costs awards currently outstanding and owing by the plaintiff regarding previous motions, be deducted and set off against the amount awarded to the plaintiff pursuant to the summary judgment award. The appropriate calculation therefore is the costs award for the summary judgment of $42,812.79 minus outstanding amounts owing from previous motions totaling $26,879.89 to produce a final amount owing to the plaintiff of $15,932.90 by the defendants.
[13] Regarding the third parties, they did not participate in the summary judgment and no costs award is made against them. Accordingly, the two $3,000 outstanding amounts owed by the plaintiff to Peto MacCallum Ltd. and Keith Loffler McAlpine Architects, respectively, are not affected by this costs award.
ORDER:
[14] Accordingly, the result is that the defendants are to pay costs of $15,932.90 to the plaintiff within 30 days. The previous costs awards made by Justice Whitten and Justice Skarica to the defendants by the plaintiff are set off and are deemed to be satisfied in full by the plaintiff. The current costs awards, pursuant to Justice Whitten’s order, payable to the third parties by the plaintiff, remain in force and are not affected by these summary judgment proceedings.
“Mr. Justice A. Skarica”
*** A. Skarica, J.
DATE: March 31, 2020
COURT FILE NO.: 15-55285-A1
DATE: March 31, 2020
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Halton Standard Condominium Corporation No. 550 (plaintiff)
A N D:
Del Ridge (Appleby) Inc., Del Ridge Homes Inc. and The Corporation of the City of Burlington, Defendants
A N D:
Peto MacCallum Ltd. and Keith Loffler McAlpine Architects, Third Parties
COST ENDORSEMENT
*** A. Skarica J.
DATE: March 31, 2020