COURT FILE NO.: CV-20-00004446-0000
DATE: 20210422
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
DUFFERIN CONSTRUCTION COMPANY, a division of CRH CANADA GROUP INC.
Applicant
-and-
THE CORPORATION OF THE CITY OF MISSISSAUGA
Respondent
COST ENDORSEMENT ON MOTION TO STRIKE APPLICATION
Contents
The Positions: 2
Entitlement: 2
Scale: 2
Quantum: 3
Dufferin commenced this Application. The City moved to strike the Application. The City’s motion was successful for the reasons set out in the written endorsement.
Written submissions on costs of the motion were received from the parties. I am not dealing with costs of the dismissed Application in these reasons. Given the limited engagement on the Application (other than time subsumed in the motion), I am hopeful the parties can resolve the issue of costs of the Application. If not, I will receive written submissions on the costs of the dismissed Application.
The Positions:
The City seeks substantial indemnity costs or in the alternative, partial indemnity costs.
Dufferin submits “at most”, the City is entitled to partial indemnity costs of $5,700 all inclusive. Dufferin submits that the City should not be entitled to any significant costs of the Application since it only put in a pro-forma appearance.
Prior to the hearing, the City submitted a Cost Outline seeking $12,797.26 for partial indemnity and $16,701.93 for substantial indemnity (both all inclusive).
Prior to the hearing, Dufferin submitted a Cost Outline showing partial indemnity of $5,729.10 (all inclusive).
Entitlement:
- I see no basis to deny the City costs of the motion.
Scale:
It was clear from the beginning, including to Dufferin, that the relief in this Application was duplicitous of the main City/Dufferin action and totally unnecessary. Dufferin’s claim in the City/Dufferin action was already before the court and had been for some time. Nevertheless, Dufferin chose to bring this Application seeking a subset of the relief it sought in the City/Dufferin action.
I agree that there were procedural benefits Dufferin sought in bringing this Application, in particular, avoiding the prohibition against partial summary judgment motions and expediting a hearing on holdback.
This directly offends the prohibition against the multiplicity of proceedings.
This Application resulted in unnecessary costs to the City to bring this motion which Dufferin continued to defend.
To grant partial indemnity costs in this situation would be to reward Dufferin’s inappropriate and unnecessary actions to be borne, at least in party by the City to respond to the Application, bring the motion and to argue the defended motion.
This court found that Dufferin’s action in commencing this Application was an abuse of process.
Dufferin relies on Abarca, but I find the circumstances in that case to be totally different.
Granting substantial indemnity costs is only granted in exceptional cases, as noted in Net Connect Installation Inc. v. Mobile Zone Inc., 2017 ONCA 766, at para. 8 “[s]ubstantial indemnity costs is the elevated scale of costs normally resorted to when the court wishes to express its disapproval of the conduct of a party to the litigation.”
A finding of abuse of process is a basis for awarding substantial indemnity costs. See Rousseau v. Scotia Mortgage Corporation et. al, 2013 ONSC 677.
In my view, this is one of those exceptional cases.
I am satisfied that substantial indemnity costs should be awarded in this case.
Quantum:
The court is still required to ensure that the substantial indemnity costs are reasonable in the circumstances.
I agree that the matter was important to both parties and involved a substantial claim. If the motion had been unsuccessful, considerable additional costs would have been incurred by the City in dealing with the Application.
There were voluminous materials filed. Factums were filed. There were numerous factual and legal complex issues raised in this motion. There was extensive argument on the motion.
Dufferin submits that the City’s counsel spent 36.2 hours on the motion whereby Dufferin’s counsel only spent 21.6 hours. I am not persuaded this is an appropriate comparison. The issue is whether the City’s time was reasonable in all the circumstances.
I agree that the lack of a detailed breakdown (or dockets) by the City of the time spent by each party makes it impossible to conduct a detailed review of the reasonableness of the time spent.
Nevertheless, I am satisfied that, given the importance, complexity of the issues and extent of the apparent resources expended on this motion, a reasonable substantial indemnity cost award for the motion is $10,000 plus HST. So ordered payable by Dufferin forthwith.
RICCHETTI RSJ.
Date: April 22, 2021