ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-16-0093-00 DATE: 2024-12-30
B E T W E E N:
9382494 Canada Limited o/a JMS Northwestern Contracting Applicant
- and -
Brenda Leigh Bell Respondent
COUNSEL: Robin Lepere, for the Applicant Cheryl Siran, for the Respondent
HEARD: December 17, 2024 In Kenora, ON
BEFORE: Regional Senior Justice W.D. Newton
Decision on Costs
[1] Following a four-day trial, Warkentin J. awarded the plaintiff (“JMS”) judgement for $41,719.60 (inclusive of HST) less a set-off for the defendant’s (“Bell’) successful counterclaim of $11,300 for a net recovery to JMS of $30,419.60 plus prejudgment interest for a total award of $34,249.30[^1].
[2] JMS had claimed $50,251.10 for unpaid services and materials for a construction job. Bell counterclaimed for approximately $34,000 for work alleged to fix or complete JMS’s work and also counterclaimed for lost rental income in the amount of $85,000.
[3] Both JMS and Bell seek costs: JMS claims $60,394.13 on a partial indemnity basis and Bell claims $43,057.73 on a substantial and partial indemnity basis.
[4] The claim was issued eight years ago, in December 2016.
[5] Offers were exchanged over the years, but none attract formal Rule 49 cost consequences.
| Date of Offer | JMS Offer | Bell Offer |
|---|---|---|
| May 2017 | JMS to receive $45000 ++ | |
| Sept 2020 | JMS to receive $3000 | |
| Sept 2020 | JMS to receive $45000 | |
| Jan 2021 | JMS to receive $10000 | |
| Mar 2021 | JMS to receive $20367.30 | |
| Mar 2022 | JMS to receive $80000 | |
| Aug 2022 | JMS to receive $30000 | |
| Dec 2023 | JMS to receive $5000 |
[6] Bell argues that success was divided. Indeed, Warkentin J. stated:
The failure to set out the terms of the construction project in a written contract resulted in both parties having different expectations of their contractual obligations. The result is that neither party will be successful in this litigation. [Emphasis added.]
[7] However, looking at the result, I find that, for costs purposes, JMS was the successful party. As JMS notes, JMS was successful on 85% of its claim and Bell was only successful on 9% of her claim.
[8] Bell also argues that it should receive costs because JMS should have accepted Bell’s August 2022 offer $30000 which is “close” to what JMS recovered. However, this offer was “all inclusive”. With prejudgment interest the JMS’s recovery was $34,249.30 and, by August 2022, the litigation had been ongoing for almost six years. JMS had incurred significant legal fees to that point and all pretrial steps had been completed. While JMS could have accepted Bell’s offer, it was not obliged to. This offer was not sufficiently “close” to have cost consequences.
[9] While the amounts claimed by both parties seem out of proportion to the amount recovered, these construction/deficiency claims require a great deal of preparation and trial time. I note that the fees claimed by Bell only include fees for her current counsel from August 2022 which is after most pretrial steps had been completed. That counsel docketed fees were $44,635 on a full indemnity basis and this did not include any work done by previous counsel in the prior years.
[10] I have carefully reviewed the dockets submitted by counsel for JMS. I have reduced the fees by deleting any hours claimed for any lawyer or assistant other than Ms. Lepere. I fix the costs payable by Bell to JMS at $37,500 plus HST plus disbursement of $3078.50 inclusive of HST. This reflects what a reasonable party could expect to pay for all steps including trial in a case like this.
[11] The $15000 paid into court shall be released to counsel for JMS in trust for JMS.
“Original signed by” The Hon. Mr. Justice W.D. Newton, R.S.J.
Released: December 30, 2024
Footnotes
[^1]: 9382494 Canada Limited et al v. Bell, 2024 ONSC 4520.