Court File and Parties

COURT FILE NO.: CV-21-00661327-0000 DATE: 20220922

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF the Construction Act, R.S.O. 1990, c. C.30

BETWEEN: JODY VOUTOUR Plaintiff

AND: MVG INVESTMENTS and VASSO GEORGIOPOULOS Defendants

BEFORE: SANFILIPPO J.

COUNSEL: Adam Ezer, for the Plaintiff Paul M. Starkman, for the Defendants

HEARD (In writing): September 22, 2022

ENDORSEMENT ON COSTS

[1] The Plaintiff, Jody Voutour, brought this claim for payment for general contracting services consisting of the supply of labour and materials said to total the amount of $30,142.00 plus interest. On November 26, 2021, the Plaintiff issued and registered a Construction Lien. On March 29, 2022, Ms. Georgiopoulos paid the sum of $37,677.50 into Court to stand in credit to this action, further to the registered lien.

[2] The Plaintiff succeeded on his motion for an order referring this action to an Associate Judge for trial, on the basis of s. 58(1)(a) of the Construction Act, R.S.O. 1990, c. C.30: Voutour v. MVG Investments, 2022 ONSC 4911. Although the costs of the motion could have been heard at the conclusion of the hearing, the Defendants requested, and were granted a process for the determination of the issue of costs by written submissions. I have now received the parties’ written submissions on costs.

[3] The Plaintiff submitted that costs follow the event, and that the Plaintiff’s success on the motion entitles the Plaintiff to an award of costs, absent exceptional circumstances which are not present here. The Plaintiff’s Cost Outline claims costs on a substantial indemnity basis, at an hourly rate of $375.00 per hour, for a total of $6,256.81. The Plaintiff also seeks costs in the amount of $500.00 for the written cost submissions process requested by the Defendants, for a total claim for costs of $6,756.81.

[4] The Plaintiff submitted that his costs on a partial indemnity level were $4,475.00, that he offered to settle the issue of costs on August 18, 2022 through receipt of this amount, and that he offered to settle costs on August 26, 2022 through receipt of this amount plus $500.00 for the written cost submission process for a total of $4,975.00, all inclusive. The Defendants did not accept either of these offers.

[5] The Plaintiff submitted that this is an appropriate case for an award of costs on a substantial indemnity basis because the Defendants have defended this action in a manner that is disproportionate to the amount in issue resulting, already, in cost awards payable by the Defendants to the Plaintiff totaling $10,301.93: Voutour v. MVG Investments Inc., 2022 ONSC 1610 (Associate Judge); Voutour v. MVG Investments Inc., 2022 ONSC 3196 (Div. Ct.).

[6] The Defendants submitted that there should be no award of costs because this motion raised a novel point of law: specifically, whether a Judge has the discretion to refer an action for trial by an Associate Judge when it is within the monetary jurisdiction of the Small Claims Court. The Defendants relied on the finding by Perell J. in Hughes v. Liquor Control Board of Ontario, 2018 ONSC 4862, at paras. 70-71, that the court has discretion to reduce the amount of costs to be awarded, or to order no award of costs, where “the state of the law is uncertain or under development or underdeveloped and it is in the public interest that the question be resolved.”

[7] This was not such a case. Even though the issue decided on this motion had not been decided before, the existing case law was adequate to resolve the issue. The Defendants’ allegedly “novel” statutory interpretation was not consistent with well-established principles and was based on a flawed understanding of the principles set out by the Court of Appeal in Duggan v. Durham Region Non-Profit Housing Corporation, 2020 ONCA 788, 153 O.R. (3d) 465. This does not make the issue novel, but rather makes the Defendants’ response to the motion unsustainable.

[8] I find that the Plaintiff is entitled to an award of costs by reason of his success on this motion: Bell Canada v. Olympia & York Developments Ltd. (1994), 1994 CanLII 239 (ON CA), 111 D.L.R. (4th) 589 (Ont. C.A.); Yelda v. Vu, 2013 ONSC 5903, at para. 11, leave to appeal denied, 2014 ONCA 353; St. Jean v. Cheung, 2009 ONCA 9, at para. 4.

[9] The Plaintiff has not established, however, that this is an appropriate case for an award of costs on a substantial indemnity basis. Costs on a substantial indemnity basis are, absent application of Rule 49.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, generally awarded where there has been “reprehensible, scandalous or outrageous conduct on the part of one of the parties”: T.A.W. v. J.C.L., 2021 ONCA 270, at para. 4, citing Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at p. 134; Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 26. I do not see these elements here.

[10] The amount of the award of costs must be reasonable, fair, and proportionate: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para. 38; Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (ON CA), [2002] O.J. No. 4495 (C.A.), at para. 4. I accept that the Plaintiff’s costs of this motion on a partial indemnity basis in the amount of $4,475.00, all inclusive, are reasonable, fair, and proportionate. I find, as well, that the Defendants shall pay the Plaintiff $500.00 for the cost of this written cost submission process because of the Plaintiff’s success; because the written cost submission process caused the Plaintiff an unnecessary expense, as the Defendants’ written cost submissions could have been made orally at the conclusion of the hearing; and because the Defendants did not accept the Plaintiff’s offer to settle the issue of costs of this motion in the amount that I have now awarded. Accordingly, total amount of the cost award shall be $4,975.00, all inclusive.

Disposition

[11] The Plaintiff is awarded costs, fixed on a partial indemnity basis in the amount of $4,975.00, all inclusive, payable by the Defendants within thirty days.

Justice A.A. Sanfilippo

Date: September 22, 2022