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

COSTS ENDORSEMENT ON EARTH BORING’S MOTION TO STRIKE PARAGRAPHS OF THE DUFFERIN STATEMENT OF DEFENCE

Contents

Position of the Parties: 1

Entitlement: 1

Conclusion: 2

1. This was a motion by Earth Boring to strike certain paragraphs of Dufferin’s Statement of Defence. For the written reasons delivered, this motion was successful in striking out certain paragraphs and not other paragraphs.

Position of the Parties:

2. Earth Boring seeks partial indemnity costs of $4,046.98 all inclusive.

3. Dufferin seeks partial indemnity costs of $7,535.97 all inclusive.

Entitlement:

4. Both parties submit that they were the “substantially successful” party on the motion.

5. I reject the submission of both parties.

6. The results on this motion were mixed. I cite two examples. Earth Boring sought to strike references to its earlier pleading despite the fact the learned Master specifically allowed the earlier pleading to be appended by Dufferin. Earth Boring lost on this issue. Dufferin sought to defend paragraphs that were clearly copied and pasted from its pleading in the City/Dufferin action without drawing or making any connection to why that paragraph was relevant to the Earth Boring action. Dufferin lost on this issue.

7. In such circumstances where the parties are successful on some significant issues and unsuccessful on other significant issues, I am not satisfied that either party was “substantially successful” and, hence, it is not appropriate to award costs to either party.

Conclusion:

8. There will be no costs of this motion.

RICCHETTI RSJ.

Date: April 22, 2021