COURT FILE NO.: CV-15-532461

DATE: 2021-06-07

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: PETER MAIER, Plaintiff

• and -

CEDARBUILT PROJECT MANAGEMENT LTD. c.o.b as CEDARCOAST TIMBER HOMES, CEDARBUILT HOMES LTD., PATRICK BONGERS, JOE AMOS, GIOVANNI VERONESI, ITALIAN CRAFTSMANSHIP TILE AND MARBLE INC., CHARTRAND CARPENTRY, DAVID HAYNES c.o.b. as EVERLASTING HABITATIONS, FCI WINDOWS INC., JAKE THERRIEN, 1015321 ONTARIO LIMITED, SGP FLOOR SYSTEMS LTD., SCHLUTER SYSTEMS (CANADA) INC., INTERLOCK INDUSTRIES (ONT.) INC. / INDUSTRIES INTERLOCK (ONT.) INC., HORSESHOE HEATING & AIR CONDITIONING, and MATTHEW KERR, Defendants

BEFORE: Master Todd Robinson

PARTIES: W. Greenley and R. Tighe, counsel for the plaintiff (moving party)

D. Haynes, for himself

HEARD: In writing

COSTS ENDORSEMENT

[1] On January 19, 2021, I heard Peter Maier’s motion for a status hearing, which was opposed only by David Haynes. For reasons released April 19, 2021, I found that Mr. Maier had shown cause why this action should not be dismissed for delay and fixed a new timetable with new set down deadline. I invited the parties to make written submissions as to costs if they could not reach agreement.

[2] I have now received and considered each party’s costs submissions. Mr. Maier seeks his partial indemnity costs in the amount of $14,157.05 payable by Mr. Haynes. The other defendants and third parties did not oppose on the basis that no costs would be sought against them. Mr. Haynes submits that, as the party seeking the court’s indulgence, Mr. Maier should bear his own costs given the delays in getting to this point.

[3] In determining costs, Section 131 of the Courts of Justice Act, RSO 1990, c. C.43 and Rule 57.01 of the Rules of Civil Procedure, RRO 1990, Reg 194 afford broad discretion to fashion a costs award that the court deems fit and just in the circumstances. The general principles applicable when determining costs are well settled. Costs are discretionary. Rule 57.01 sets out a non-exhaustive list of factors to be considered by the court in exercising that discretion, which are in addition to considering the result of the proceeding. Rule 1.04(1.1), which is also applicable, requires the court to make orders that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding.

[4] Costs awards should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant: Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] OJ No. 4495 (CA) at para. 4; Davies v. Clarington (Municipality), 2009 ONCA 722 at para. 52. The overall objective is fixing an amount that is fair and reasonable in the particular proceeding, having regard to the expectations of the parties concerning the quantum of costs: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 OR (3d) 291 (CA) at paras. 26 and 38.

[5] Mr. Maier argues that the motion was critical to him, relying on a similar determination made in Tricar Developments Inc. v. Terex Corporation, 2018 ONSC 5246. In that case, Mitchell J. observed, at para. 16, that the status hearing was a critical step in the proceeding and that success on the motion was critically important to the plaintiffs. However, in my view, Tricar does not assist Mr. Maier.

[6] First, Mr. Maier overstates the criticality of his motion. In Tricar, Mitchell J. also observed, “If unsuccessful, the litigation would have been at an end and the plaintiffs would have been denied their day in court and denied the opportunity to remedy their perceived wrongs.” Put simply, had the plaintiffs been unsuccessful, the entire action would have been dismissed. That is not the case here. Had Mr. Maier been unsuccessful, it is undisputed that his action would have continued as against all other defendants. Moreover, at the hearing, certain defendants expressed an intention to continue crossclaims against Mr. Haynes if the action was dismissed against him. Considering the narrower role of Mr. Haynes in the overall $1.4 million claim as reflected in the amended statement of claim and Scott Schedule, I do not agree that it was “critical” to Mr. Maier’s action or recovery that his motion succeed against Mr. Haynes.

[7] Second, in Tricar, Mitchell J. expressly notes that the defendants did not object the plaintiffs’ entitlement to costs of the status hearing. Rather, the dispute was regarding the plaintiffs’ claim for substantial indemnity costs and the defendants’ position that claimed costs were excessive. Here, Mr. Haynes directly disputes Mr. Maier’s entitlement to costs at all.

[8] Despite Mr. Maier’s position that it was unreasonable for Mr. Haynes to oppose, I agree with Mr. Haynes that it was not. None of the delays in the litigation to this point were genuinely caused or even materially contributed to by Mr. Haynes. The record before me does not support a finding that Mr. Haynes was even aware of the reasons for delay. Since the result of a successful opposition may have been a dismissal against Mr. Haynes, who evidently seriously disputes any liability, it was not unreasonable for him to oppose.

[9] That said, I agree with Mr. Maier that Mr. Haynes is not insulated from the risk of an adverse costs award by opposing a motion such as this one. The fact that a plaintiff seeks the indulgence of the court does not mean that a defendant can oppose it on a no-risk basis: Cambridge Bingo Centre v. 149974 Ontario Limited, 2018 ONSC 935 at para. 67.

[10] Mr. Maier suggests that affidavit materials were more fulsome and prepared with more rigour because of Mr. Haynes’ opposition. However, it is unclear from Mr. Maier’s submissions what portions of the affidavit evidence were otherwise unnecessary to satisfy Mr. Maier’s evidentiary onus absent Mr. Haynes’ opposition. Moreover, the submission ignores that Rule 48.14(7) requires the plaintiff to show cause why the action should not be dismissed for delay.

[11] Consenting to a motion and not opposing it are distinct positions. In the context of a status hearing motion, consent provides the court with a clear indication that the parties are in agreement that the action should continue and, subject to addressing any issues or concerns the court may have regarding a timetable, there is no need for any argument on the merits. However, the fact that the other defendants and third parties were unopposed to Mr. Maier’s status hearing motion does not necessarily mean that they supported (or consented to) continuation. It means only that they chose not to add an additional roadblock of arguing against Mr. Maier. While an unopposed motion will often be granted, that is not always the case.

[12] Rule 48.14(7) requires that the court be satisfied the action should proceed. In my view, an unopposed status hearing motion still requires the moving party to tender evidence to satisfy the court regarding both aspects of the conjunctive test, namely that there is an adequate explanation for litigation delay and no prejudice to the defendants. Since Mr. Maier did not have consent of all other defendants and third parties irrespective of Mr. Haynes’ opposition, Mr. Maier was obliged to prepare an affidavit addressing the legal requirements for a status hearing. It follows that it was necessary for the affidavit evidence to be prepared in any event.

[13] The issue, then, is the extent to which Mr. Haynes’ opposition increased the complexity, duration, or expense of the motion. Mr. Haynes filed no responding materials and did not cross-examine Mr. Maier. He thereby submits that no additional effort or expense was required other than the materials and arguments already compiled and deemed necessary by Mr. Maier to persuade the court of the legitimacy of the motion. I do not agree.

[14] As already noted, I accept that Mr. Maier had to bring this motion in any event and thereby had to incur some costs irrespective of Mr. Haynes’ opposition. This is not a case where I am satisfied that the entirety of delay to this point rests solely at the feet of the defendants, making this motion inevitable by reason of the defendants’ conduct. In my view, it is not just for Mr. Maier to recover his full partial indemnity costs where his own conduct caused and contributed to delays. However, I am not satisfied that Mr. Haynes contributed to delays in any material way, nor am I satisfied that less evidence than is included in the motion record would have been required if Mr. Haynes had not opposed. It is thereby not just for Mr. Haynes to bear costs of the necessary motion record. Having elected not to seek costs from the other defendants, it is appropriate that Mr. Maier bear his costs of preparing the motion record.

[15] I am satisfied, though, that Mr. Maier likely would not have required a factum and associated legal research had Mr. Haynes not opposed the motion. Also, a substantially shorter hearing would have been required. Those are costs incurred solely as result of Mr. Haynes’ opposition that likely would not otherwise have been incurred.

[16] Turning to other factors in Rule 57.01, although I have not accepted that it was “critical” for Mr. Maier to succeed, that determination does not diminish the importance of the motion. Mr. Maier has advanced a direct claim against Mr. Haynes in negligence and, had the motion been unsuccessful, would have lost that claim and the ability to recover directly from Mr. Haynes for any proven losses which Mr. Haynes is found to have caused or contributed. Claims being pursued against Mr. Haynes (and others) with respect to stone cladding deficiencies are in excess of $300,000 in damages.

[17] The motion was not overly complex. I find the rates claimed in Mr. Maier’s costs outline to be reasonable considering the experience of Mr. Maier’s counsel. The hours claimed are, in my view, overall proportionate.

[18] For the foregoing reasons, I find that the fair and reasonable amount of costs payable by Mr. Haynes to Mr. Maier in respect of this motion is $6,000.00, inclusive of HST and disbursements. Typically costs are made payable forthwith. However, in the particular circumstances of this case, including the outstanding disposition on Mr. Haynes’ limitations defence, I find it appropriate that costs be payable in the cause. Order accordingly.

MASTER TODD ROBINSON

DATE: June 7, 2021