COURT FILE NO.: CV-628334-00A1 (Toronto)

DATE: 20210422

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

EARTH BORING COMPANY LIMITED

Plaintiff

-and-

GROUPE CRH CANADA INC./CRH CANADA GROUP INC., formerly DUFFERIN CONSTRUCTION COMPANY, A DIVISION OF HOLCIM (CANADA) INC.

Defendant

-and-

THE CORPORATION OF THE CITY OF MISSISSAUGA

Third Party

COST ENDORSEMENT TO STRIKE THIRD PARTY CLAIM

Contents The Positions. 1 Entitlement 2 Scale: 3 Quantum: 3

[1] The City brought this motion to strike the Third Party claim. The motion was defended by Dufferin.

[2] Dufferin was wholly successful as the motion was dismissed.

The Positions:

[3] Dufferin seeks its partial indemnity costs of $4,203.60 all inclusive.

[4] The City submits that no costs should be awarded or alternatively, they should be in the cause.

Entitlement:

[5] There is no doubt that Dufferin was successful – wholly successful.

[6] The City raises no reasonable basis upon which this court could or should deny Dufferin its costs of this motion.

[7] The City points to the separate motion with regard to striking paragraphs of Dufferin’s defence. That motion is entirely unrelated.

[8] The City moved to strike the Third Party Claim to avoid Dufferin’s claim for contribution and indemnity claim despite the fact both proceedings relate to the same construction project. Had the motion been successful, this would have provided the City with a tactical litigation advantage. It was not.

[9] Dufferin is entitled to costs.

[10] There is no reasonable basis to make the cost order in the cause. Such orders are now rarely made since judges recognize that this litigation may take years before it is tried and any attempt, at that time, to fully and properly assess costs of the multitude of motions, including this one, would be futile. As a result, the norm is that the judge hearing the motion assesses costs for each step in the proceeding at the conclusion of each step.

[11] I am also not persuaded that the City, is “a public authority” for this type of proceeding nor should it be given a “free ride” or defer payment of costs of an unsuccessful motion.

[12] The City submits it sought to avoid duplicative proceedings. In my view, this motion was brought as part of a litigation strategy by the City to being brought into the Earth Boring action and avoiding the contribution and indemnity claim.

[13] This motion is not “public interest litigation”. There is no direct “general public benefit” to the residents of Mississauga in the relief sought in this motion. It is a construction project and a dispute over liability and damages relating to the construction. If this were a public interest litigation, then all litigation involving any city, provincial or federal government would be public interest litigation. That is not the state of the law.

[14] Lastly, there is no evidence of adverse financial impact on the City of any cost award that could be made here.

Scale:

[15] Dufferin claims partial indemnity. I agree that is the appropriate scale of costs.

Quantum:

[16] No submissions were made on any specific items claimed by Dufferin.

[17] Order to go awarding Dufferin costs of $4,203.60, all inclusive, payable forthwith.

Ricchetti, RSJ

Date: April 22, 2021