COURT FILE NO.: CV-18-594953
DATE: September 13, 2021
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 1917196 Ontario Ltd. o/a Save On Contracting v. Sadaf Kazmi, Shazia Tareen, Tasneem Zahir and Adnan Bashir;
BEFORE: ASSOCIATE JUSTICE C. WIEBE;
COUNSEL: Murry Snider for 1917196 Ontario Ltd. o/a Save On Contracting (“Save On”);
Robert J. Kennaley for Sadaf Kazmi, Shazia Tareen, Tasneem Zahir and Adnan Bashir (“the Defendants”);
HEARD: July 26, 2021.
REASONS FOR DECISION
[1] At the trial management conference on May 10, 2021 Mr. Snider asked me to schedule a motion by Save On to amend its statement of claim due to evidence that came out during the discovery of the defendants on December 9 and 10, 2020. I was told that the motion would be opposed and that scheduling the trial hearing would not be possible without having this motion determined first. I, therefore, set a schedule for this motion.
[2] Motion material was filed. On July 26, 2021 I heard the argument. Save On wants to amend its statement of claim in the following ways:
• To correct a misnomer changing the name of the plaintiff from 1917916 Ontario Ltd. as originally pleaded in the statement of claim to “1917196 Ontario Ltd.,” which is the proper name of the plaintiff;
• To add a claim of $45,017 in breach of contract damages called “additional construction costs;”
• To add a claim that Mr. Bashir was a “builder” or “vendor” under the New Home Warranties Plan Act, R.S.O. 1990, c. O.31 ( “ONWPA”), and that he misrepresented himself to Save On as an owner thereby inducing Save On to enter into the subject contract and therein assume the responsibility of a “builder” under ONHWPA including the statutory warranties and expenses required of a “builder” by Tarion.
[3] The defendants do not oppose the misnomer correction. They oppose the other amendments alleging that they are improper and out of time.
BACKGROUND
[4] The underlying project was the construction of four residential homes the registered owners of which were the defendants other than Mr. Bashir. On or about August 29, 2016 Mr. Bashir and Save On signed a contract wherein Save On undertook this work for a fixed price that was based on the ratio of $144 per square foot. I will call this document the “Contract.”
[5] In the Contract, Mr. Bashir is described as the “customer” and Save On the “contractor.” In the document Save On promised to register with Tarion and Mr. Bahir promised to “be a guarantor with Tarion” for this enrollment.
[6] Prior to the Contract, Save On had given Mr. Bashir a bid with the option that formed the contract and another option, namely one with a price based on a ratio of $165 per square foot with Save On assuming the Tarion responsibilities and costs entirely. Work proceeded. The defendants posted $80,000 of security with Tarion ($20,000 per house).
[7] It is undisputed that ONHWPA prohibits owners from guaranteeing a builder’s Tarion obligations like this. Save On had to take on the full Tarion obligations as the “builder.” Work eventually ceased in early January, 2018 before the scope was done. On February 8, 2018 Save On registered three claims for lien on the four properties totaling $225,705. It is undisputed that this figure was derived from accounting based on the alternative bid price grounded on the $165 per square foot ratio.
[8] On March 29, 2018 Save On purported to perfect its lien by commencing this action. In its statement of claim Save On pleaded that as the law allowed only the $165 per square foot option, Save On “was entitled to calculate” the contract price based on that ratio, thereby creating the $225,705 entitlement.
[9] On August 14, 2018 the defendants delivered a statement of defence and counterclaim. They pleaded that the registered owners retained Cityscape Real Estate Ltd. (“Cityscape”) to provide project management for the project, and that Mr. Bashir was the Cityscape “agent” appointed as project manager. The defendants pleaded that the Tarion problem was the result of Save On’s own negligence. In paragraph 5 the defendants pleaded that Mr. Bashir executed the Contract “on behalf of the Registered Owners.”
[10] On October 5, 2018 Save On delivered its reply and defence to counterclaim. In this document, it expressly admitted paragraph 5 of the defendants’ statement of defence, namely that the Contract was executed by Mr. Bashir on behalf of the registered owners. Save On also seems to plead a mutual mistake by both parties, stating that “both Save On and Bashir believed honestly, and in good faith, that either party was entitled to pay all financial guarantees and expenses required by Tarion.”
[11] There was a judgment of reference and an order for trial. I assumed carriage of the reference at the first trial management conference on December 2, 2019. During several subsequent trial management conferences, I ordered production and discovery.
[12] The defendants did not disclose the contract the registered owners had with Cityscape. The discoveries of the parties happened eventually on December 9 and 10, 2020. During discovery, the defendants disclosed this document, called a “Project Management Agreement,” dated December 15, 2015. In this document, Cityscape promised to provide the registered owners with “planning, budgeting, expediting, coordinating and supervising necessary for timely execution of the Project.” Cityscape also promised that the project would be done “in a good and workmanlike manner.” The document also specified that Cityscape would act “as the limited agent of the Owner” in procuring bids and quotes, and that Cityscape would sign contracts and other project documents on behalf of the registered owners. Save On then asked me on May 10, 2021 to schedule this motion.
[13] In this motion, Save On wants leave to amend its statement of claim to plead that Mr. Bashir, not Cityscape, was a “builder or vendor” of the project under the ONHWPA, that Mr. Bashir “misrepresented” himself to Save On as an owner when he was not one thereby wrongfully inducing Save On to enter into the contract and assume the obligations of a “builder,” and that Save On “would not have entered into the agreement to build the Properties” had it known the alleged truth. One of amendments says the following: “The Plaintiff never at any time had any contractual relationship with the Owners,” namely the registered owners.
[14] In support of the motion, Save On filed two affidavits from its principal, Noorulah Kamil. In these affidavits, Mr. Kamil swears that it was the disclosure of the contents of the Project Management Agreement (“PMA”) that caused him to conclude that he had been misled by Mr. Bashir at the time of the Contract into believing that Mr. Bashir was an owner when he was really the builder. Mr. Kamil says that this belief was bolstered by other investigations he undertook. The defendants responded with an affidavit from Mr. Winter, Mr. Kennaley’s associate.
[15] The filed draft amended statement of claim suddenly also included the amendment claiming the $45,017 in “additional construction costs.” There was no evidence in support of this amendment. All of the proposed amendments except for the misnomer are in addition to what has already been pleaded.
ISSUES
[16] Based on the motion material and the submissions of counsel, I believe that the following are the issues to be determined:
a) Should leave under Construction Act, R.S.O. 1990, c. C. 30 (“CA”) section 67(2) be granted?
b) Is the amendment concerning misrepresentation out of time?
c) Can the amendment concerning misrepresentation be joined to a lien action?
d) Is the amendment concerning the additional construction costs out of time?
e) Should the defendants be awarded security for costs?
f) Should the defendants be awarded costs thrown away?
ANALYSIS
a) Should leave under CA section 67(2) be granted?
[17] The old provisions of the CA apply to this case. CA section 67(2) specifies that any interlocutory steps other than those provided for by the CA “shall not be taken without the consent of the court obtained upon proof that the steps are necessary or would expedite the resolution of the issues in dispute.” Motions to amend pleadings are such interlocutory steps that are not expressly provided for by the CA. The onus rests with the moving party to establish the grounds for leave.
[18] I have struggled with this issue in relation to this motion. In my view, the original pleadings concerning the Contract were unclear. As stated earlier, it appears that Save On pleads that there was a mutual mistake in the Contract concerning the underlying Tarion regime. However, the claimed remedy is unclear. Without naming the remedy expressly, it appears that Save On claims a rectification of the Contract amending the Contract to account for the mutual mistake making the price to be one based on the $165 per square foot ratio. It also appears that by admitting paragraph 5 of the statement of defence and counterclaim Save On originally accepted the allegation that Mr. Bashir (or Cityscape) was a pure project manager who acted as agent for the registered owners in executing the Contract, thereby making the Contract arguably a “contract” under the CA.
[19] The proposed amendments concerning the Contract are also poorly drafted and unclear. It appears that Save On proposes to plead an entirely different theory, namely that Mr. Bashir was really a “contractor” under the CA and a “builder” under ONHWPA, that the Contract was really a “subcontract” under the CA, that Mr. Bashir misrepresented himself to Save On as being an owner to foist onto Save On the Tarion responsibility and costs, and that Save On would not have signed the Contact had it known the alleged truth about Mr. Bashir. This theory conflicts with Save On’s original theory and its admission of paragraph 5 of the statement of defence and counterclaim; but there is no expressed pleading amendment that these two theories are in the alternative, as required by Rule 25.06(4). There is also no expressed pleading of a remedy under the new theory although it appears that Save On claims rescission of the Contract. Restitution is the usual remedy for contract recession, but that is not pleaded. But the existing pleading includes claims of quantum meruit and unjust enrichment which may apply. There is also no pleading as to whether the alleged misrepresentation was negligent, fraudulent or innocent, although based on the cross-examination of Mr. Kamil, Save On may be claiming negligent or fraudulent misrepresentation.
[20] However, I will not determine this motion on account of the adequacy of the Save On pleadings and amendments. I am mindful that the court must read pleadings generously when determining whether they disclose a reasonable claim or defence; see Healthy Lifestyle Medical Group Inc. v. Chand Morningside Plaza Inc., 2019 ONCA 6 at paragraph 7. I note as well that the defendants do not challenge the adequacy of the Save On amendments. I will, therefore, proceed based on the analysis of the pleadings and amendments as described above.
[21] As such, I have concluded that leave should be granted for this motion. The wording of the PMA contemplates Cityscape (and Mr. Bashir) acting as either a pure project manager (ie. agent of the registered owners) or as a contractor. Therefore, whether Mr. Bashir was a pure project manager or a contractor is a real issue that needs to be determined. Several issues turn on this one. The defendants have challenged the timeliness of the Save On claim for lien, and the issue of lien timeliness will turn on which lien period applies, namely that of a contractor or that of a subcontractor. Also, the person liable to pay Save On needs to be determined and that issue will also turn on the issue of whether Mr. Bashir was the contractor. If Mr. Bashir was a contractor, the registered owners’ liability to Save On may be reduced to holdback only. Also, the damages that may be claimed by the defendants by set-off and counterclaim may be affected by this issue.
[22] Furthermore, while the defendants have challenged the timeliness of these amendments, as I will explain below, I am not satisfied that there is clear evidence that the amendments concerning the Contract are out of time and cannot be joined to lien actions. Also, I believe that the defendants have contributed to the lateness of this motion by not producing the PMA sooner than at the discoveries.
[23] Mr. Kennaley provided me with the decision of Master Albert in Becerra v. Ronchin, 2016 ONSC 4232. I find this decision distinguishable from the motion before me. In Becerra the contractor brought a motion to amend his statement of claim to add new causes of action in equity, new damage claims, and claims relating to other projects. Master Albert found these claims to be either statute barred or incapable of being joined and denied leave. I do not find that to be the case here.
[24] Concerning the amendment about the additional construction costs, while there was no evidence to support this proposed amendment, its wording alone satisfies me that it stems from an alleged under-calculation of the work done in the kitchen area in the original Save On claim for lien and statement of claim. As such, as I will again explain further below, I am not satisfied that this claim is out of time. As this issue concerns the calculation of the Save On claim, it needs to be determined as well. I grant leave for this part of the motion also.
b) Is the amendment concerning misrepresentation out of time?
[25] The rule that concerns amendments to pleadings that are not admissions is Rule 26.01. This rule states that the court “shall” grant leave to amend pleadings “on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.” It is undisputed that pleading a new cause of action that is statute barred under the Limitations Act, 2002, S.O. 2002,c. C.24 (“LA”) is a form of such prejudice that cannot be compensated with costs or an adjournment.
[26] Mr. Kennaley argued that the amendments concerning misrepresentation are clearly statute barred. The defendants have the onus of proving this point; see 1588444 Ontario. Ltd. v. State Farm Life and Casualty Company, 2017 ONCA 42 at paragraph 25.
[27] A word about admissions. During the oral argument I raised a concern that the proposed amendments concerning misrepresentation amounted to a withdrawal of the admission by Save On in its original pleading that its contract was with the registered owners. However, as stated above, I have decided to give the Save On proposed amendments a generous interpretation and find that they impliedly plead the new theory as being in the alternative to the original pleading as required by Rule 25. This addresses the concern about admissions.
[28] The issue of limitation period starts with the issue of whether the misrepresentation amendments are a new cause of action. A new cause of action is one with new pleaded facts leading to new relief. An amendment does not plead a new cause of action if it simply pleads new relief based on the facts as already pleaded; see Klassen v. Beausoleil, 2019 ONCA 407 at paragraph 28. In paragraph 28 of the Klassen decision the Court of Appeal said this: “an amendment will be refused when it seeks to advance, after the expiry of a limitation period, a "fundamentally different claim" based on facts not originally pleaded.”
[29] I accept that the misrepresentation amendments are a new cause of action, as argued by Mr. Kennaley. These amendments are a new set of facts and new relief. They recast the Contract as a subcontract, not a contract, in light of the newly pleaded PMA, and assert that Mr. Bashir misrepresented himself to Save On as an owner thereby inducing Save On to believe it was a contractor and “builder” under ONHWPA and causing Save On to enter into the Contract accepting the Tarion responsibilities of a “builder.” The amendments appear to seek a new remedy, namely one of contract rescission with recovery based on the existing pleading of quantum meruit and unjust enrichment. The old pleadings do not create a foundation for this theory. The original pleadings did not mention the PMA and cast the Contact as a general contract with a mutual mistake about Tarion obligations leading to a different remedy of contract rectification.
[30] Mr. Kennaley argued that misrepresentation amendments are statute barred. I do not agree. The authorities are clear that the two year limitation period for the cause of action of negligent misrepresentation starts to run at the time of discovery of the misrepresentation as that is when the plaintiff allegedly knows it has a contract that is less favourable to it than what it thought it had. The “injury, loss or damage” in relation to negligent misrepresentation for the purposes of section 5 of the LA occurs at the time of the alleged misrepresentation; see Hamilton (City) v. Metcalfe & Mansfield Capital Corporation, 2012 ONCA 156 (C.A.) at paragraph 56.
[31] Mr. Kennaley is not correct in identifying the misrepresentation in this case that triggers the running of the limitation period. He argued that it was Save On’s knowledge that Mr. Bashir was in fact not an owner, contrary to his representations that he was an owner, that is the triggering event. Mr. Kamil admitted in cross-examination that he was aware that Mr. Bashir was not an owner as early as February, 2018 when he registered the Save On claim for lien.
[32] But the alleged misrepresentation is more than that. It concerns the alleged fact that Mr. Bashir was in truth a “builder” under ONHWPA. A representation by Mr. Bashir that he was an owner when he was not an owner is consistent with the original theory pleaded by Save On, namely that Mr. Bashir was a project manager and that Save contracted with the registered owners.
[33] What distinguishes the new cause of action pleaded in the Save On amendments is the allegation that Mr. Bashir was in fact a “builder” and not a project manager, and that he misrepresented to Save On that he was an owner instead, thereby causing Save On to believe it was a “builder” and enter into the Contract. The evidence on this motion is that Mr. Kamil acquired this knowledge of Mr. Bashir’s alleged actual responsibilities to the registered owners at the time of the disclosure of the PMA a few months ago during the oral discoveries. Mr. Kamil’s affidavits indicate that it is the contents of the PMA that caused him to believe he had been misled.
[34] As a result, I am not prepared to find that the defendants have shown that the misrepresentation amendments are clearly statute barred.
c) Can the amendment concerning misrepresentation be joined to a lien action?
[35] CA section 55(1) states that “a plaintiff in an action may join with a lien claim a claim for breach of contract or subcontract.” It is well settled authority that stand-alone claims in tort cannot be joined to a lien action by virtue of section 55(1); see Clarke’s Electrical Service Ltd. v. Gottardo Construction Ltd., (2001) 9 C.L.R. (3d) 14 (Ont. S.C.J.) at paragraph 24. In her Becerra decision at paragraph 48 Master Albert said this: “There must be an essential connection between the lien claim and the claim that the plaintiff seeks to join with the lien claim . . . Claims without an essential connection are more properly advanced in separate actions.”
[36] Mr. Kennaley argued that the Save On misrepresentation amendments are a stand-along tort claim that cannot be joined to this action by virtue of CA section 55(1). Having asserted this position, the defendants have the onus of proving it.
[37] I find that they have failed to do so. Again, giving the Save On amendments a generous interpretation, as I must, I find that the new claim of Contract rescission engages the pleaded claim for recovery based on quantum meruit and unjust enrichment. In paragraph 20 of its statement of claim Save On pleads claims of quantum meruit and unjust enrichment and connects those claims directly to the alleged supply of services and materials by Save On and the “value” those services and material gave the defendants. Hence the “essential connection” to the lien claim.
[38] I view the Save On claim of Contract rescission based on misrepresentation as being of the same type as to the claims for unjust enrichment and quantum meruit grounded on claims of quasi-contract. Where parties believe they have a contract and one party supplies goods and services accordingly, and where they then cannot prove the contract, there is authority for the proposition that section 55(1) does not prohibit the joinder of claims of unjust enrichment and quantum meruit. Indeed, the CA’s definition of “price” contemplates a situation where the parties do not agree on a price and states that the lien is then based on the “actual value” of the services and materials supplied.
[39] In Juddav v. Designs Inc. v. Cosgriffe, 2010 ONSC 6597 (Master), aff’d 2012 ONSC 6493 at paragraph 28-29 Master Albert said the following on this issue: “this [section 55(1)] would not preclude advancing a claim for payment based on services performed and acknowledged as received when the contract relied upon is not proven, either as to the agreed upon price or as to the proper naming of the parties.”
[40] The Save On misrepresentation amendments approach the issue from a different direction, namely where a contract is proven and then rescinded due to misrepresentation. But the result is arguably the same. I have found that the amendments allege that the Contract, which existed and was the basis of Save On’s supply, should be rescinded due to Mr. Bashir’s misrepresentation about being an owner and not a “builder,” and that Save On should be compensated for the value of its services and materials supplied, at least in part.
[41] I find, therefore, that the defendants have failed to prove that there is no “essential connection” between the Save On misrepresentation amendments and the Save On lien claim. As a result, section 55(1) creates no barrier to the joinder.
d) Is the amendment concerning the additional construction costs out of time?
[42] I share Mr. Kennaley’s concern that this claim was not supported by any affidavit evidence. As pleaded, though, the claim is clear enough. The amendment states that on February 12, 2018, well over two years ago, Save On rendered an invoice in the amount of $45,017 for the cost of “50 square feet of additional square footage in each of the kitchen areas.”
[43] The Save On claim for lien and its original statement of claim calculated the amount alleged to be owing on the basis of a rectification of the Contract to account for the alleged mutual mistake concerning Tarion obligations. The calculation was the multiplication of the square footage constructed by the rectified ratio, $165 per square feet, plus extras less credits and less payment. The Save On claim for lien was registered on February 8, 2018, namely two days before this invoice was allegedly delivered.
[44] I draw the inference from these facts that Save On missed including the invoice of February 12, 2018 in its claim for lien and statement of claim, and now wishes to correct that oversight. There should have been evidence explaining this oversight, as I am “leaning over backwards” in making these inferences. I will certainly take that failure by Save On into account in my costs award.
[45] Mr. Kennaley argued that this claim is also out of time as the invoice was rendered well over two years ago. Again, the defendants have the onus of proving this point.
[46] I do not find that they have met their onus. This is not a new cause of action. I refer back to my discussion about the Court of Appeal decision in Klassen. A new cause of action is one with new material facts and new relief. That is not the case here. The February 12, 2018 invoice appears to be the result of a recalculation of the construction space and amount owing. It relates to the facts already pleaded concerning the calculation of the contract price and the amount owing. It is new relief based on existing pleaded facts. I was given no authority by Mr. Kennaley for the proposition that a single invoice like this one represents a stand-alone cause of action. The invoice should have been included in the Save On claim for lien but was not, and now represents a breach of contract damage claim as a result.
[47] I, therefore, find that the defendants have failed to prove that this claim is out of time.
e) Should the defendants be awarded security for costs?
[48] Mr. Kennaley argued that I should exercise the jurisdiction of the court under Rule 56.09 to order that Save On post security for the defendants’ costs. The reason, he argued, is that the Save On motion is being brought “at a late stage in the proceedings,” namely after discoveries. Under Rule 56.09 a court may award security for costs as a term of granting relief. This rule is a jurisdiction to award security for costs that is separate from Rule 56.01(1).
[49] The defendants provided me with authority concerning Rule 56.09. I am satisfied that this jurisdiction to award security for costs is applicable to cases where the one granted relief is receiving an indulgence of the court despite that party’s conduct or misconduct. For instance, in Whitty v. Wells, 2016 ONSC 2266, Justice Myers granted the plaintiffs an unopposed extension of time to deliver affidavits of documents and expert reports. There had been numerous breaches of timetable orders by the plaintiffs, and the defendants wanted security for costs as a term of the relief. His Honour awarded the security for costs. In paragraphs 33 and 34, His Honour made it clear that such an award was meant to test the commitment the plaintiffs to the case. In Jolicoeur v. Hawkesbury (Ville), 2008 CanLII 29772 (ONSC) Master Beaudoin dismissed various actions for delay, but allowed the plaintiffs to continue their defence of the action by their former lawyers for outstanding fees on condition they post security under Rule 56.09 in the amount of the claimed fees. It is clear from the Master’s ruling that the security was a discipline on the plaintiff due to their conduct.
[50] I am not prepared to exercise the Rule 56.09 jurisdiction in this motion. I find that the fact and timing of this motion were as much, if not more, the result of the conduct of the defendants as it was the result of Save On. The defendants chose not to disclose the PMA as a part of their affidavit of documents and production. This is the document that Save On alleges led to this motion. At the first trial management conference on December 2, 2019 I ordered that the parties produce their affidavits of documents and productions by January 15, 2020. The defendants did not do so. On June 15, 2020 I extended that deadline to July 3, 2020 and imposed sanctions on the defendants due to their non-compliance. On September 10, 2020 I extended that deadline to September 17, 2020. It appears that the defendants chose not to produce the PMA in advance of the oral discoveries despite this history and these production orders. They only disclosed it at the oral examinations for discovery in December, 2020.
[51] Mr. Kennaley tried to explain this conduct by arguing that the PMA was “irrelevant” as it had been pleaded by the defendants and admitted by Save On. I have reviewed the pleadings. The PMA was referred to in the defendants’ pleading and was described as a project management contract. Save On indeed admitted that the Contract was executed by Mr. Bashir on behalf of the registered owners. It did so, however, without the benefit of having seen the PMA.
[52] Now that the PMA has been disclosed, I see that it contemplates Mr. Bashir acting as a project manager or general contractor or both. Mr. Bashir’s status is a real issue that needs to be determined. Other issues turn on this one. Whether Mr. Bashir was a pure project manager and Save On a contractor, on the one hand, or whether Mr. Bashir was a contractor and Save On a subcontractor, on the other, is relevant to the issue of lien timeliness, which the defendants contest. It is relevant to the issue of the person who is liable to pay Save On. It is relevant to the nature of the damages the defendants have pleaded by counterclaim. Finally, it is relevant to the issue of whether Save On was indeed a “builder” under ONHWPA. Had the PMA been produced when I originally ordered production, namely by January 15, 2020, this motion might have been avoided or at least reduced as the limitation issues would not have been pronounced.
[53] Mr. Kennaley also alluded to factors under Rule 56.01 to argue for security for costs. As there is no formal motion for security for costs by the defendants under that rule, it is unnecessary for me to comment on these submissions, and I do not do so.
[54] For these reasons, I decline ordering security for costs under Rule 56.09 as a term of the relief granted.
f) Should the defendants be awarded costs thrown away?
[55] The defendants also want costs thrown away on account of Save On having brought this motion “at a late stage in the proceedings.” They provided me with the decision of the Court of Appeal in Kings Gate Developments Inc. v. Colangelo, 1994 CanLII 416. In this case the defendants brought motions to amend pleadings on the eve of trial without a good explanation for doing so. The motion was denied by the motions judge but granted on appeal. The Court of Appeal held that as Rule 26.01 was mandatory there was no discretion. But the Court, however, ordered significant costs thrown away as a deterrent against this type of conduct.
[56] For the reasons described above, I am not prepared to order costs thrown away, as I find that the defendants were a significant contributor to the fact and timing of this motion.
[57] Mr. Kennaley referred to the need to create a timetable to deal with the defendants’ desire for a motion for an order discharging the Save On claim for lien and return the $80,000 of Tarion security that has been posted. That can certainly be done at the next trial management conference which is presently scheduled to take place on October 26, 2021.
CONCLUSION
[58] In conclusion, I grant the motion in its entirety without the terms requested by the defendants.
[59] Concerning costs, counsel filed costs outlines. The Save On costs outline shows $9,593.70 in actual costs, $7,674.96 in substantial indemnity costs and $5,756.22 in partial indemnity costs. The defendants’ costs outline shows $15,243.70 in actual costs, $12,957.15 in substantial indemnity costs and $9,908.41 in partial indemnity costs.
[60] Save On was clearly the successful party in this motion, but as noted I find that its pleadings and amendments leave much to be desired. If the parties cannot agree on costs, Save On can deliver written submissions on costs of no more than three pages on or before September 20, 2021. The defendants can then deliver written submissions on costs of no more than three pages on or before September 27, 2021. Save On can deliver reply written submissions on costs of no more than one page on or before September 29, 2021.
DATE: September 13, 2021
ASSOCIATE JUSTICE C. WIEBE