Court File and Parties

Court File No.: CV-20-0065344 Date: 2023-02-27 Superior Court of Justice - Ontario

Re: BELCAP MANAGEMENT INC., Plaintiff And: MARJORIE DIXON, Defendant

Before: Justice Papageorgiou

Counsel: Michael Mcquade, for the Plaintiff Kaleigh Du Vernet, for the Defendant

Heard: February 27, 2023

Costs Endorsement

[1] The plaintiff Belcap Management Inc. (“Belcap”) seeks costs in respect of a motion brought by Marjorie Dixon (“Dixon”) to refer this action to Associate Judge Robinson at Toronto for trial and case management together with a lien action bearing Court File Number CV-19-627633 and that these matters be tried together or one immediately after the other.

[2] Dixon initially retained Goldcon Inc. as a construction manager to perform work. She took the position that Goldcon’s work was deficient and fell below the standard. She engaged Belcap by way of contract to carry forward with the construction work following Goldcon’s termination.

[3] Goldcon registered a lien and so that action was automatically referred to an Associate Judge. Another contractor EDG, also registered a lien and that action was referred to an Associate Judge. Justice Robinson was case managing these matters.

[4] She also took the position that Belcap’s work was deficient and terminated its contract.

[5] Belcap commenced an action claiming breach of contract but did not register a lien as this action was commenced out of time. Had it done so, the matter would have automatically been referred to an Associate Judge and it would have been case managed by Justice Robinson together with the Goldcon and EDG matters.

[6] In her factum in respect of the motion which was to be brought, Dixon set out the authorities which supports the existing policy of having all matters which arise out of the same construction project to be case managed together by an Associate Judge, even where no lien has been filed.

[7] Dixon has now settled with Goldcon and EDG. Accordingly, there is no ongoing proceeding related to this construction project being managed by Associate Judge Robinson.

[8] As such, Dixon has withdrawn the motion.

[9] Pursuant to s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, costs are in the discretion of the court. Rule 57 sets out the factors which courts should have regard to when awarding costs. The overall objective is “to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant”: Boucher v. Public Accountants for the Province of Ontario (2004), 71 O.R. (3d) 291 (Ont. C.A.), at para. 26; Davies v. Clarington (Municipality) et al., 2009 ONCA 722, 100 O.R. (3d) 66, at para. 52; G.C. v. Ontario (Attorney General), 2014 ONSC 1191.

[10] Rule 57 directs that the Court may have reference to the following factors:

57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer;

(h.1) whether a party unreasonably objected to proceeding by telephone conference or video conference under rule 1.08; and

(i) any other matter relevant to the question of costs.

[11] Counsel for Dixon made a r. 49 Offer to withdraw her motion on a without costs basis. Belcap did not accept this offer as it takes the position that it should be awarded some costs for having had to review the comprehensive Motion Records, prepare its own, and review Dixon’s factum.

[12] While the motion is now moot and cannot be determined, having regard to the policy of the Construction Lien Act and the rules of Civil Procedure, it is likely that Dixon’s motion would have been successful.

[13] However, since it has not been argued, the outcome remains unknown.

[14] Therefore, in the exercise of my discretion I am awarding some costs, but not all costs incurred.

[15] The quantum claimed by Belcap is $8,503 on a partial indemnity basis. Dixon’s counsel’s bill of costs for comparative purposes sets out that her partial indemnity costs are $4,917. Dixon’s counsel’s bill contains claimed amounts for her factum which Belcap did not need to prepare.

[16] Taking into account the fact that the motion is moot, the comparison of the partial indemnity amounts claimed by both parties, in the exercise of my discretion I am awarding Belcap $3,000 to be paid within 30 days.

Justice Papageorgiou

Date: February 27, 2023