Court File and Parties

COURT FILE NO.: CV-21-0101-00 DATE: 2023-04-25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Finn Way General Contractor Inc. v. Superior Masonry (Thunder Bay) Ltd.

HEARD: In writing

BEFORE: Newton J.

COUNSEL: M. Marrie, for the Plaintiff R. Larson, for the Defendant

Endorsement on Costs

[1] By decision dated March 3, 2023 [1], I gave judgement in favour of Finn Way in the amount of $134,606.

[2] Finn Way seeks costs of $85,000 which Finn Way describes as “roughly midway between its partial ($69,606.29) and substantial ($101, 473.60) indemnity costs”.

[3] The defendant Superior submits that $25,000 “all in” represents what a losing party might reasonably expect to pay for this action, especially given what Superior describes optimistically as its partial success.

[4] There were no offers that would attract Rule 49 cost consequences. In hindsight, Superior should have seen the benefit of an offer given the undisputed evidence in this case.

[5] The factors that the Court may consider in exercising its discretion with respect to costs are set out in Rule 57.01.

[6] Recovery was within the monetary limit of the Simplified Rules.

[7] Finn Way recovered $134,606. $240,238 was sought.

[8] This was a 2 day trial. It was neither factually nor legally complex despite the court seeking assistance on the law of bidding.

[9] I acknowledge that counsel for the plaintiff took the lead on production of the document books and produced document books that were well organized and of great assistance to the parties and to the Court.

[10] Total hours claimed by counsel for the plaintiff are just under 300 hours and this does not include hours for the second chair who assisted at trial. No Bill of Costs was submitted from Superior’s counsel for comparison. The partial indemnity rate claimed for plaintiff’s trial counsel was $225 which I would describe as “in the range” for a case of this nature.

[11] Nothing was indicated that would have made discovery or trial preparation particularly complex or lengthy. The last minute amendment by Superior was unnecessary but did not add significant work to the plaintiff side.

[12] Prominent among the factor under Rule 57.01 is “the amount of costs that an unsuccessful party could reasonably expect to pay…”.

[13] My analysis should not be taken as criticism of trial counsel for the plaintiff. Counsel was an effective, well organized, and persuasive advocate. However, considering the Rule 57.01 factors, this is not an action and trial which justifies an $85,000 costs award.

[14] This was an uncomplicated, 2 day trial and the recovery was well within the monetary jurisdiction of the Simplified Rules.

[15] Considering all the circumstances of the case and, particularly, “the amount of costs that an unsuccessful party could reasonably expect to pay…”, I fix costs in the amount of $25,000 plus HST and disbursements of $2500 inclusive of HST. I do not allow the travel and related expenses of counsel for the plaintiff. The defendant should not be burdened with the plaintiff’s choice of out of town counsel. There is nothing in this case that suggested special experience or expertise was required [2].

“Original signed by” The Hon. Mr. Justice W.D. Newton

DATE: April 25, 2023

Footnotes

[1] 2023 ONSC 1582.

[2] I adopt the “unavailability of local counsel test” as articulated by the Alberta Court of Appeal in Allen (Next Friend of) v. Mueller, 2006 ABCA 101.