COURT FILE NO.: CV-16-566839

DATE: 2022 08 03

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF the Construction Act, RSO 1990, c. C.30, as amended

BETWEEN:

KEVIN REID

K. Reid, in person

Plaintiff / Defendant by counterclaim

- and -

YI XIAO, NANSHENG XIE and COMPUTERSHARE TRUST COMPANY OF CANADA

R. Hosseini and J. Kasozi, for the defendants / plaintiffs by counterclaim, Yi Xiao and Nansheng Xie

Defendants / Plaintiffs by counterclaim

HEARD: In writing

COSTS ENDORSEMENT

[1] Trial in this action occurred over six days in February and March 2021. For reasons released on November 11, 2021, I found in favour of the plaintiff, Kevin Reid, declaring his entitlement to a lien in the amount of $8,277.97, including HST, and awarding him judgment against the defendants, Yi (Nancy) Xiao and Nansheng (Nelson) Xie (together, the “Owners”), for the same amount, plus pre-judgment interest.

[2] After releasing my decision, following a request for an indulgence by Mr. Reid, I ordered an amended timetable for costs submissions. The parties completed their exchange of written submissions in February 2022. Release of this costs decision has been delayed, for which I apologize to the parties.

[3] Both sides seek their costs. Having considered the parties’ submissions in the context of applicable costs principles, I am awarding Mr. Reid costs of the action in the amount of $9,000, including HST and disbursements.

Analysis

[4] Mr. Reid’s bill of costs sets out a partial indemnity costs claim of $69,040.39, including disbursements, plus $20,613.10 in interest charges seemingly calculated on his principal claim amount at a rate of 6% per annum, compounded monthly. He submits that, after deducting that interest component, costs should be awarded in his favour in the amount of $30,000. He acknowledges that there has been some divided success, though, with the Owners’ positions prevailing on some disputes issues. He proposes that his costs award be reduced by $10,000 to account for the Owners’ degree of success, for a net costs award of $20,000.

[5] The Owners seek their own costs of the action on a partial indemnity basis from the date of a pre-trial offer to settle made on August 14, 2020, which total $62,328.37, including HST. They further submit that Mr. Reid should not be entitled to any costs since he does not meet the requirements for a self-represented litigant recovering costs and, in any event, his ultimate recovery was within the jurisdiction of the Small Claims Court.

a. Legal framework for costs in a lien action

[6] The parties’ contract and the construction work pre-date the 2018 amendments to the now-former Construction Lien Act, RSO 1990, c C.30 (the “CLA”). By operation of s. 87.3 of the current Construction Act, the act and its regulations as they read on June 29, 2018 (i.e., the CLA) continue to apply to the subject improvement and, thereby, Mr. Reid’s lien and this lien action.

[7] Costs in this lien action are governed by s. 86 of the CLA, which provides the court with broad discretion in deciding costs. Pursuant to s. 86(2), where the least expensive course is not taken by a party, the costs awarded to that party shall not exceed what would have been incurred had the least expensive course been taken. Also relevant to assessing costs is the requirement that procedure in a lien action be as far as possible of a summary character, having regard to the amount and nature of the liens in question: CLA, s. 67(1).

[8] By operation of s. 67(3) of the CLA, the Courts of Justice Act, RSO 1990, c. c.43 and the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”) apply except to the extent of any inconsistency with the CLA. Rule 57.01 of the Rules outlines non-mandatory and non-exhaustive considerations for the court in assessing costs. The court has repeatedly held rule 57.01 is not inconsistent with the CLA and is applicable in the court’s exercise of discretion under s. 86.

[9] 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: 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 CanLII 14579 (ON CA), 71 OR (3d) 291 (CA) at paras. 26 and 38.

b. Mr. Reid’s entitlement to costs as a self-represented litigant

[10] Self-represented litigants must satisfy two pre-conditions before the court will award costs to them: (i) they must have devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation and (ii) as a result, they must have incurred an opportunity cost by foregoing remunerative activity: Girao v. Cunningham, 2021 ONCA 18 at para. 9; Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 OR (3d) 330 (CA) at para. 26.

[11] The key element to costs entitlement for a self-represented litigant is doing work ordinary done by a lawyer. Since all litigants suffer a loss of time through involvement in litigation, a self-represented litigant cannot recover costs for the time and effort that any litigant would have to devote to the case: Fong v. Chan, supra at para. 26.

[12] The Owners submit that Mr. Reid should not be entitled to costs because he has not met the necessary pre-conditions. They submit that Mr. Reid is claiming for time that he would still have incurred had he been represented by counsel, such as attending discoveries, preparing for trial, and attending the trial. They also submit that Mr. Reid’s role at trial would have been much the same, namely giving evidence and assisting counsel, which is what the Owners did.

[13] I do not accept the Owners’ argument for three reasons.

[14] Firstly, Mr. Reid has not been self-represented for the entirety of the litigation. The Owners have advanced no specific argument for why I should deny Mr. Reid’s claims for costs paid to his former lawyers to preserve and perfect his lien, close pleadings, and obtain a judgment of reference. I find no basis to do so.

[15] Secondly, the Owners do not fairly characterize the distinction between Mr. Reid assisting counsel and acting for himself. The Owners are correct that Mr. Reid would have spent time attending discoveries, assisting with preparing for trial, and attending trial, but I do not accept that the extent of time would have been the same. I have no hesitation finding that time spent preparing for and attending trial management conferences (which clients commonly do not attend), discoveries, the settlement conference, and trial required Mr. Reid to perform work ordinarily done by a lawyer. I saw it firsthand through the trial affidavit evidence he prepared for himself and his witnesses and the extent of his preparation for trial cross-examinations and submissions.

[16] Thirdly, I am satisfied that Mr. Reid, who is a sole proprietor, incurred an opportunity cost by foregoing remunerative activity.

[17] The Court of Appeal has held that claims for lost opportunity costs should not become complex hearings where the self-represented litigant must account for every minute of the day and prove every penny of revenue that was lost: Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228 at para. 18. In my view, there is enough before me to support a finding that Mr. Reid reasonably lost opportunity costs to advance this litigation through to trial.

[18] In his costs submissions, Mr. Reid identifies two specific projects that he says he gave up as a result of this litigation. It is a submission, not evidence, but his evidence at trial supports that he is the sole proprietor of a small contractor business who is directly involved in his projects. Since I conducted a substantial part of this reference, I am in a different position than a judge hearing only the trial. I have seen Mr. Reid’s preparedness and work product. I accept that he could not reasonably have conducted this litigation as he did without turning down other work.

[19] Nevertheless, I agree with the Owners that Mr. Reid’s bill of costs appears to claim all of the time he spent on this litigation, including time that any litigant would reasonably be expected to spend. That has been somewhat addressed in Mr. Reid’s reduced costs claim of $30,000.

c. Failure to refer this action to the Small Claims Court

[20] The Owners argue that, since Mr. Reid’s judgment is within the monetary jurisdiction of the Small Claims Court, he should be denied any costs. They specifically point to s. 58(1)(c) of the Construction Act (the successor to the CLA following its amendment on July 1, 2018), which provides that a lien action for an amount within the monetary jurisdiction of the Small Claims Court may be referred, in whole or part, to be tried by a deputy judge of the Small Claims Court.

[21] The Owners rely on the decision in Mastracci v. 1882877 Ontario Inc., 2019 ONSC 3814, in which Donohue J. denied costs where judgment was within the monetary jurisdiction of the Small Claims Court and where no motion has been brought to refer the matter to the Small Claims Court. The Owners submit that Mr. Reid similarly failed to bring a motion to move this action to the Small Claims Court and has obtained a judgment with its monetary jurisdiction.

[22] Donohue J.’s decision appears to have been based on four main factors: (i) neither party (not just the plaintiff) had brought a motion to move the action to the Small Claims Court, (ii) the competing claims of the parties did not ultimately warrant the time, effort and cost of proceedings in the Superior Court, (iii) the parties should have made significant compromises to resolve the claims out-of-court or made realistic rule 49 offers, and (iv) there was mixed results and only a modest recovery.

[23] The facts of Mastracci v. 1882877 Ontario Inc. are not before me, but the decision does not discuss the transition provisions in s. 87.3 of the Construction Act. As already noted, that provision operates such that the CLA continues to apply to this lien action. Under s. 58(1) of the CLA, a reference to the Small Claims Court was not available to Mr. Reid. That procedure was introduced with the amendments effective July 1, 2018, which do not apply to this lien action.

[24] It follows that the Owners’ argument that Mr. Reid ought to have referred this action to the Small Claims Court must fail. Mr. Reid should not be denied costs for failing to do something that was statutorily unavailable to him. When Mr. Reid ultimately sought and obtained a reference under s. 58(1) to a construction lien master (as we were then titled), that was the proper and established procedural route for a lien action in Toronto.

[25] The Owners’ argument also presumes that Mr. Reid had no reasonable or good faith basis to believe that his actual claim for unpaid base contract amounts and asserted extras had merit. I made no such finding. Although many of Mr. Reid’s claims ultimately failed on evidentiary grounds, that does not mean they were doomed to fail from the outset of litigation. I find no basis to hold that Mr. Reid ought reasonably to have considered abandoning most of his $67,794.85 claim to attorn to the jurisdiction of the Small Claims Court (then $25,000) and pursue his claim in that court.

d. Impact of monetary recovery

[26] The Owners further rely on subrule 57.05(1) of the Rules, which provides that if a plaintiff recovers an amount within the monetary jurisdiction of the Small Claims Court, the court may order that the plaintiff shall not recover any costs.

[27] As already noted, except where inconsistent with the CLA, the Courts of Justice Act and the Rules apply to lien actions: CLA, s. 67(3). No case law has been put forward by either side on treatment of subrule 57.05(1) in a lien action. Although Donohue J. noted it as an argument raised in Mastracci v. 1882877 Ontario Inc., supra, that argument was not ultimately addressed.

[28] In my view, subrule 57.05(1) is inconsistent with the CLA. It is premised on denying costs to a successful plaintiff who has brought an action in the wrong court. However, lien actions cannot be commenced in the Small Claims Court.

[29] A lien claim is enforceable in an action in the Superior Court of Justice: CLA, s. 50(1). Although the Small Claims Court is a branch of the Superior Court of Justice, the jurisdiction of the Small Claims Court is statutorily limited to payment of money and recovery of possession of personal property within its monetary limit: Courts of Justice Act, s. 23(1). The Small Claims Court would therefore seem to lack jurisdiction to make determinations regarding the lien remedy, such as declarations regarding the validity or priorities of liens or orders for sale of a property. It follows that s. 50(1) does not permit issuance of lien actions in the Small Claims Court.

[30] In addition, the CLA expressly provides that a lien action is to be tried by a judge or on a reference: CLA, s. 51. As already discussed, references to the Small Claims Court are not available in lien actions governed by the CLA.

[31] To be clear, I am not deciding whether subrule 57.05(1) is inconsistent with the current Construction Act. That is an issue to be argued and decided in another case, likely requiring a separate analysis that considers the availability of references to the Small Claims Court in lien actions governed by the current legislation. In this case, though, the CLA applies and I am satisfied that subrule 57.05(1) is inconsistent with that former legislation.

[32] That does not mean the quantum of a plaintiff’s recovery is irrelevant. Subrule 57.01(1)(a) of the Rules provides that the court may consider the amount claimed and the amount recovered in the proceeding when deciding costs. That discretionary consideration is consistent with the broad costs discretion afforded in s. 86 of the CLA.

[33] Mr. Reid’s ultimate recovery was modest, but he rightly points out that the Owners were almost completely unsuccessful in their own claims against him, which comprised $112,432.60 for remedial costs and a further $25,000.00 for mental distress (the latter of which was not pursued at trial). Mr. Reid submits that, of his total claim, he proved $24,165.77, from which $15,887.80 in credits for incomplete work was deducted. The Owners were unsuccessful in proving any of their alleged deficiencies. Although Mr. Reid’s net recovery was only $8,277.97, he argues he was still more successful than the Owners when considering their total set-off and counterclaim, which Mr. Reid submits I should consider.

[34] I agree with Mr. Reid. The Owners did advance a set-off and counterclaim that was nearly double the claim against them. They tendered two experts in support of those claims. I determined that the opinions of both experts should be given no weight. I also denied any recovery on the alleged deficiencies (except the wooden knee wall, which I viewed as a change for which the Owners were entitled a credit). I found that the alleged deficiencies lacked sufficient evidentiary support or reliably quantified rectification costs.

[35] In these circumstances, it would be inequitable to deny Mr. Reid costs simply because the result is within the monetary jurisdiction of the Small Claims Court. That said, the fact of modest recovery is still a factor that I have considered in determining costs of this action.

e. Other factors under subrule 57.01(1)

[36] Turning to the other factors under subrule 57.01(1), it is relevant to my decision on costs that Mr. Reid sued for $67,794.85 and only recovered $8,277.97. However, it is equally a factor that the Owners pursued a claim of $112,432.60 at trial, but were unsuccessful.

[37] The proceeding was, in my view, of average complexity for a home renovation and construction case. Although there was non-compliance with court-ordered timetables on both sides, I cannot say that one side acted in a manner that unnecessarily impacted the duration of trial or the overall reference more than the other. For example, neither party was ultimately ready to proceed with the first-scheduled trial, resulting in its adjournment. Both sides also worked fairly cooperatively through the ultimate trial process, which involved a remote trial by videoconference before many of the processes now in place for remote hearings had been established.

[38] There was some divided success. Mr. Reid proved only a fraction of his total claim and the Owners did succeed in obtaining credits disputed by Mr. Reid. However, most of the Owners’ set-off claim and counterclaim was unproven. In my view, degree of success is a fairly neutral factor.

[39] Since the Owners’ own bill of costs outlines partial indemnity costs of $93,234.96, including HST and disbursements, Mr. Reid’s proposed partial indemnity costs claim of $30,000 (before the $10,000 discount he proposes for the Owners’ success) is certainly within the reasonable expectations of the Owners. I agree with Mr. Reid, though, that the Owners’ costs are not proportionate or within reasonable expectations for a claim of this quantum and complexity.

[40] Mr. Reid claims partial indemnity costs claim of $4,700 for legal fees incurred with his former counsel. Although the specific work performed is not particularized, it is evident that counsel was involved in registering Mr. Reid’s claim for lien, preparing the statement of claim and registering the certificate of action, completing pleadings, and brining the motion for a judgment of reference. In my view, Mr. Reid’s partial indemnity claim is reasonable for such work. Total legal fees paid to Landy Mar Kats LLP and Powell Litigation is indicated to be $10,139.21.

[41] Mr. Reid also claims for his own time and time of his bookkeeper, Jessie Lin. Mr. Reid is entitled to claim for his own time as a self-represented litigant. I agree with the Owners, though, that Mr. Reid cannot claim reimbursement for any amounts that he may have paid to Ms. Lin.

[42] I have been provided with no authority for claiming reimbursement for time spent by a non-party and non-legal professional assisting in litigation. In addition to Ms. Lin not being a legal professional, there are no documents supporting that she was paid for her services assisting Mr. Reid, such as invoices or proof of payment. I have only Mr. Reid’s submission that she was paid. In these circumstances, I am not awarding any costs recovery for Ms. Lin’s time.

[43] With respect to Mr. Reid’s own time, I take no issue with using a rate of $150 per hour, which I view to be a reasonable estimate of the value of his opportunity cost in this particular case.

[44] Mr. Reid has calculated his partial indemnity claim on the basis of 65% of the actual time claimed for him (and Ms. Lin). The Owners have used 60% of their actual costs. The Court of Appeal has commented that amounts calculated at 55%-60% of a reasonable actual rate more appropriately reflect a partial indemnity recovery: Inter-Leasing, Inc. v. Ontario (Revenue), 2014 ONCA 683. In my view, Mr. Reid’s calculation thereby requires adjustment on that basis.

[45] The hours claimed by Mr. Reid also appear high when considering that only time spent doing the work of a lawyer is recoverable. Total hours claimed by Mr. Reid are comparable to those claimed by the Owners (approx. 350 total hours for Mr. Reid vs. approx. 450 total hours for the Owners), but some entries claimed by Mr. Reid seem unrealistic for a single day and, in my view, would require some substantiation to accept. For example, Mr. Reid claims a total of 18 hours of work on December 13, 2018 and 22 hours of work on February 21, 2019, both described generally as “preparation and discovery attempts”.

[46] In my view, the time claimed by Mr. Reid must be reduced to account for the time that he would reasonably still have spent as a litigant for the various stages had he been represented by counsel. Mr. Reid has already proposed adjusting his partial indemnity claim down to $30,000 (less a further $10,000 to account for the extent of the Owners’ success). Nevertheless, in my view, that is still high when Ms. Lin’s time is discounted, the partial indemnity calculation is adjusted, and Mr. Reid’s hours are reduced to account for time that he would reasonably have spent in any event.

[47] Mr. Reid claims total disbursements of $4,374.21 for printing costs, examiner and transcript fees, and process servers. These disbursements have not been challenged by the Owners. In my view, they are reasonable disbursements for an action and in line with the disbursements claimed by the Owners.

[48] Weighing the factors in subrule 57.01(1) of the Rules and my discretion under s. 86 of the CLA, I would award costs of the action in favour of Mr. Reid in the amount of $15,000, on a partial indemnity basis (including fees for Mr. Reid’s former lawyers), plus the undisputed disbursements of $4,374.21, for a total of $19,374.21. However, before making my final decision on costs, I must consider the Owners’ unaccepted offer to settle.

f. The Owners’ offer to settle

[49] The Owners rely on their offer to settle dated August 14, 2020, in which they offered to pay Mr. Reid the all-inclusive sum of $20,000. That offer remained open for acceptance by Mr. Reid for twenty days without costs, after which Mr. Reid was required to pay the Owners’ partial indemnity costs from the date of the offer, as agreed or assessed, less $500. The Owners submit that, given the judgment of $8,277.97, their offer was more favourable and, had it been accepted, the parties would not have spent thousands of dollars (in the case of the Owners, tens of thousands of dollars) preparing for and attending trial, which represents the bulk of litigation costs incurred.

[50] I agree with the Owners’ submission that costs rules are designed to encourage settlement of actions at an early date and that significant costs sanctions can be imposed by the court for failure to accept a reasonable settlement offer: Apex Results Realty Inc. v. Zaman, 2019 ONSC 752 at para. 8. That principle dovetails with s. 86(2) of the CLA, which provides that a party who has not taken the least expensive course shall not be allowed costs exceeding what would have been incurred had that least expensive course been taken.

[51] The Owners rely on subrule 49.10(2) of the Rules, which provides costs consequences for a plaintiff who fails to accept a defendant’s offer to settle. Specifically, it provides that if a plaintiff obtains a judgment as or less favourable than the terms of a defendant’s offer to settle made at least seven days before commencement of the hearing that has not been withdrawn and does not expire before the hearing, and is not accepted by the plaintiff, then the plaintiff is only entitled to partial indemnity costs to the date of the offer, after which the defendant is entitled to partial indemnity costs. The Owners also rely on rule 49.13, which gives the court discretion to take into account any offer to settle made in writing, the date of the offer, and the terms of the offer.

[52] Rule 49 of the Rules provides for mandatory cost entitlements and presumptive costs consequences flowing from failure to accept offers. In my view, that is inconsistent with the discretionary language of s. 86 of the CLA. That does not mean, however, that rule 49 and offers to settle cannot be considered within the discretionary framework of s. 86.

[53] Mastracci v. 1882877 Ontario Inc. (discussed earlier in these reasons) is the only case relied on by the Owners that was decided in a lien action. The rest are decisions in non-lien actions to which s. 86 of the CLA does not apply, addressing circumstances under which the court must or ought to apply rule 49. Since the context of those decisions is different, I do not find them particularly instructive in this case.

[54] Mr. Reid submits that the Owners have the burden of proving that the judgment obtained is less favourable than their offer, that the offer must be “crystal clear” before the presumptive costs consequences in rule 49.10 are engaged, and that “all-inclusive” offers often fail to provide sufficient clarity to trigger cost consequences: Mayer v. 1474479 Ontario Inc., 2014 ONSC 2622 at paras. 110-113. He points out that the Owners’ offer is an all-inclusive sum, with no separation between damages, tax, interest, costs, and disbursements. He also submits that his costs liability if the offer was accepted after the initial twenty-day period was uncertain.

[55] In any event, Mr. Reid submits that $20,000 is not more favourable than the result, since it fails to account for his entitlement to costs up to the date of the offer, plus interest. He argues that his entitlement for the remaining categories of interest, costs, and disbursements exceeds $11,722.03, which is the difference between the judgment awarded and the $20,000 offer.

[56] I agree with Mr. Reid that the “all-inclusive” nature of the Owners’ offer renders it meaningless without reference to Mr. Reid’s costs entitlement, at least to the date of that offer, plus the judgment and interest award. Those are necessary to assess if the offer was more favourable.

[57] Mr. Reid has put forward his own interest calculation totalling $20,613.10, calculated at a rate of 6% per annum, compounded monthly, on the claim amount. In his statement of claim, Mr. Reid did not claim interest at a contractual rate. At para. 1(b), he only claimed interest pursuant to the Courts of Justice Act. The claim also does not refer to any other interest rate. For that reason, I awarded Mr. Reid interest from the date of his lien pursuant to the Courts of Justice Act, meaning pre-judgment interest at a rate of 0.8% per annum. Given the judgment obtained, pre-judgment interest to the date of the Owners’ offer is $311.16, with per diem interest of $0.18.

[58] I agree with the Owners that the majority of time and costs incurred by both sides was in preparing for and conducting the trial. Based on the bills of costs submitted, roughly 45% of the total claim for Mr. Reid’s own time was spent preparing for and attending trial, as compared to roughly 70-75% of the Owners’ total claimed fees.

[59] Considering the above, and that I have rejected the Owners’ argument that Mr. Reid has not satisfied the preconditions for his own time being compensable, it is not clear that the Owners’ offer to settle was actually more favourable. However, it is certainly not far off the mark as of when the offer was made. Nevertheless, in my view, that is not sufficient to trigger adverse cost consequences for Mr. Reid.

[60] Ultimately, I agree with Mr. Reid that the consequences of not accepting the offer within the no-costs window was unclear at the time it was made. Although the Owners were offering to forego their set-off claims and counterclaim, my findings at trial were that those claims were largely not borne out on the evidence. Likewise, while the Owners’ bill of costs supports that the majority of their costs were incurred in preparing for and attending trial, nothing before me indicates that either a bill of costs to the date of the offer or any estimate of costs to trial was provided to Mr. Reid with the offer. That would have assisted in clarifying the anticipated consequences of not accepting the offer.

[61] No other settlement positions are before me. Neither side has disclosed the positions taken or offers made at the settlement conference before my now-retired colleague. Notably, I have been advised of no offers to settle being made by Mr. Reid at all, including in response to the Owners’ offer. I am concerned by what appears to be a collective failure to earnestly try to resolve this fairly modest dispute out-of-court, particularly when neither side tendered sufficient evidence at trial to prove many of the items claimed. Had both sides taken a hard look the evidentiary gaps in their case and genuinely considered the comments that no doubt my retired colleague gave them at the settlement conference, a trial may not have been needed at all.

[62] I find that the Owners were more reasonable in their approach to settlement. Their offer to withdraw their own claim and make a modest payment to settle the action reflects a fair compromise, particularly given the weaknesses in their position as I found at trial. That offer also accounted for weaknesses in Mr. Reid’s claim, which I also found at trial. However, there is no evidence or submission of any reciprocating willingness by Mr. Reid to recognize and account for evidentiary weaknesses in his own claim.

[63] In my view, the willingness of a party to explore reasonable pre-trial resolution of a lien action is a factor that falls within the ambit of s. 86(2) of the CLA. Pursuing meaningful pre-trial settlement discussions would have been a less expensive course of action in this case, and may well have avoided the trial entirely. I am not prepared to deny Mr. Reid costs entirely, but a reduction in the costs that I would otherwise have awarded Mr. Reid is warranted in the circumstances.

g. Disposition on costs

[64] For the reasons above, I find that Mr. Reid is entitled to recover his legal fees paid for preserving and perfecting his lien, closing pleadings, and obtaining the judgment of reference, on a partial indemnity basis, plus his disbursements in the action. I am otherwise persuaded that Mr. Reid’s failure to engage in reasonable settlement negotiations (based on the submissions before me), particularly following the Owners’ offer to settle, and his seeming unwillingness to appreciate the evidentiary shortcomings in his case and offer to compromise his claim, support that Mr. Reid should ultimately be awarded no costs for his own time.

[65] I thereby fix Mr. Reid’s costs of the action on a partial indemnity basis in the amount of $9,000, including HST and disbursements. That figure is comprised of $4,700, including HST, for his legal fees incurred at the beginning of litigation, plus $4,300 in disbursements.

REPORT

[66] Concurrently with release of this costs endorsement, I am providing the parties with a draft report (without property description schedule or back page) based on Form 21 under the CLA. Comments on the draft report may be provided directly to my Assistant Trial Coordinator by email, preferably in track changes or revised Word copy. If either side feels that oral submissions are required to settle the draft report, then a hearing may be booked through my Assistant Trial Coordinator. If no comments are received and a hearing is not booked (although not necessarily heard) within the next fourteen (14) days, I will finalize the report.

ASSOCIATE JUSTICE TODD ROBINSON

DATE: August 3, 2022