Court File and Parties
Court File No.: CV-22-66-00 Date: 2023-05-23
Superior Court of Justice - Ontario
Re: M & M Sewage Disposal Ltd. v. Derek James Keay carrying on business as Keay Contracting & Septic and 2670474 Ontario Inc. carrying on business as Keay Contracting & Septic
Heard: May 16, 2023
Before: Pierce J.
Counsel: Ms. A. Colquhoun for the applicant Ms. T. Hasan for the respondents
Endorsement on Costs
[1] The respondents, Keay et al., moved unsuccessfully for an order dismissing the application. See M & M Sewage Disposal Ltd. v. Keay Contracting et al., 2023 ONSC 925. The applicant is therefore entitled to its costs. The applicant submits that costs should be awarded on a substantial indemnity scale, arguing that the respondents delayed the proceeding for months with scheduling maneuvers, with the result that the application, originally scheduled to be heard in January, will now be heard in July.
[2] As I indicated at the costs motion, I do not agree that this amounts to reprehensible conduct that should attract increased costs. Rather, it approaches the rough and tumble of litigation, that arises from imperfect communication between counsel. There is no indication that the applicant is prejudiced by this degree of delay.
[3] On a partial indemnity basis, the applicant seeks $4,000 in costs, arguing that this was a complex motion, important to the applicant. It contends that these costs would be within the reasonable expectation of the losing parties.
[4] The respondents submit that costs related to the case conference should not be allowed. It suggests that $2,500 is the appropriate quantum of costs, based on their partial indemnity bill of costs claiming $2,500 for a lawyer who is two years junior in call to the applicant’s lawyer.
[5] In my view, because the case conference was necessary to set the parameters for the argument of the motion, costs for those attendances should be allowed.
[6] Costs are discretionary. Generally, they are intended to be fixed by the court after a summary hearing, based on principles set out at Rule 57 of the Rules of Civil Procedure. In this case, in addition to preparation for and attendance at the scheduling conference, argument on the motion took about two hours. The parties filed factums and authorities. The decision was just 12 pages in length.
[7] In my view, reasonable and proportional costs should be fixed at $3,000 inclusive, payable by the respondents to the applicant within 30 days. Order accordingly.
“original signed by” The Hon. Madam Justice H.M. Pierce