Court File and Parties

COURT FILE NO.: CV-19-394 DATE: 2023-07-14

ONTARIO SUPERIOR COURT OF JUSTICE

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

B E T W E E N:

BUILT BY ENGINEERS CONSTRUCTION INC. Dennis Crawford, Counsel for the Responding Plaintiff Plaintiff/Defendant by Counterclaim

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CORONATION MEDICAL PLAZA INC. Greg Murdoch, Counsel for the Moving Defendant Defendant/Plaintiff by Counterclaim

HEARD: In Writing The Honourable Justice C.D. Braid

COSTS ENDORSEMENT

I. OVERVIEW

[1] Coronation Medical Plaza Inc. (“Coronation”) is the owner and landlord of a commercial property in Cambridge. In 2015, Coronation contracted with Built By Engineers Construction Inc. (“BBE”) for the construction of three commercial buildings on the property.

[2] BBE commenced a construction lien action against Coronation and registered a lien on the property. Coronation brought a motion seeking to discharge the lien under s. 47 of the Construction Act, R.S.O. 1990, c. C.30 because it was not registered in time in accordance with the Act. In reasons cited at Built By Engineers v. Coronation Medical Plaza, 2023 ONSC 2969, the motion to discharge the lien was dismissed.

[3] I must now determine costs of the motion. For the reasons that follow, I find that a fair and reasonable award of costs on the motion, payable by Coronation to BBE, is $22,000.

II. ANALYSIS

[4] BBE seeks partial indemnity costs of $30,457.21. Coronation’s counsel submits that the costs claimed are excessive, and states that its own counsel’s fees on the motion were $21,175 on a partial indemnity basis.

[5] BBE was entirely successful on the motion and is entitled to costs. In determining quantum, the court is to consider the factors set out in Rule 57.01 of the Rules of Civil Procedure, as well as s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Those factors include the principle of indemnity, the reasonable expectations of the parties, the complexity of the proceeding, the importance of the proceeding, and the conduct of the parties in litigation. I have considered these factors.

[6] I have also considered the principles in Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para. 24. The fixing of costs should reflect what the court views as a fair and reasonable amount to be paid, rather than any exact measure of the actual costs to the successful litigant.

[7] The parties filed motion records, affidavits, factums and books of authorities. Cross-examinations were conducted. The parties provided further written submissions after the motion was argued. This motion was of high importance to the parties. The two most important factors are the principle of indemnity and the amount of costs that the unsuccessful party could reasonably have expected to pay in the event they were unsuccessful.

[8] I find that a fair and reasonable award of costs for this motion is $22,000.

III. CONCLUSION

[9] For all of these reasons, this court orders that the defendant Coronation shall pay costs to the plaintiff BBE in the amount of $22,000, inclusive of HST and disbursements. These costs shall be paid by August 31, 2023.

Braid, J. Released: July 14, 2023