Reference and Court Information

Reference: Miller/Desjardins v. JF Lajoie Construction Inc. et al., 2025 ONSC 4764

Court File Number: CV 22-00000009-0000

Date: 2025-08-18

The Superior Court of Justice – Ontario

Parties

Plaintiffs:

• Monique Miller
• Michel Desjardins

Defendants:

• J.F. Lajoie Construction Inc.
• Jacques Lajoie

Before the Court

The Honourable Justice M. Flaherty

Counsel:

• Mr. Taayo Simmonds, counsel for the Plaintiffs
• Vincent Carney, counsel for the Defendants

Cost Award

Background

[1] This is a cost award following a four-day trial, which was held in March and April 2025. The plaintiffs were successful at trial against the individual defendant, Mr. Lajoie. He was found liable in negligence and negligent misrepresentation and the plaintiffs were awarded damages in the amount of $64,211.80.

[2] The parties were unable to agree on costs and they provided brief written submissions on this issue.

Positions of the Parties

[3] The plaintiffs incurred costs of $65,242.57. They submit that the defendants should pay their costs on a substantial indemnity basis in the amount of $60,061.33, because:

• Until shortly before trial, the defendants were not represented by counsel. They say Mr. Lajoie's conduct and his repeated failure to comply with the Rules led to significant delays and increased the cost of litigation.

• Under Rule 49, the defendants declined an offer to settle of $50,000, which is less than the plaintiffs were awarded at trial.

• The matter was complex and involved expert evidence as well as significant "procedural management" because of the defendants' non-compliance with the Rules.

[4] The defendants state that the plaintiffs' costs are excessive, unreasonable, and disproportionate to the value of the litigation. They also submit that the court should exercise its discretion and not apply Rule 49 in this case because:

• The defendants acted reasonably throughout the litigation and in declining the settlement offer.

• The plaintiffs were only partially successful and did not make out their claim against the corporate defendant or their allegations of breach of contract.

• The defendants are "likely unable" to pay the costs sought by the plaintiffs.

Analysis

[5] In my view, the plaintiffs' costs were not excessive, unreasonable or disproportionate. Specifically:

• The hourly rates charged are not excessive. For example, Mr. Simmonds' hourly rate of $400 is reasonable, particularly as he has 12 years of practice experience.

• The 13-page bill of costs provides sufficient particulars of the legal services performed.

• Although this was a simplified proceeding, the matter was relatively complex and required expert evidence. It also involved pre-trial motions and two pre-trials.

• The defendants' own conduct contributed to the costs of the proceeding. This included Mr. Lajoie's failure to confirm motions, to file materials on time, and to provide timely disclosure.

[6] I note that the defendants have not submitted a bill of costs, which might have allowed a comparison of the legal costs incurred by each party. In short, while the costs claimed are significant relative to the value of the simplified proceeding litigation, I do not find them unreasonable or excessive in the circumstances.

[7] On March 10, 2022, the plaintiffs made an offer to settle in the amount of $50,000. Mr. Lajoie was asked to advise if he accepted the offer by March 15, 2022. Applying Rule 49.03, I do not consider this offer to have cost consequences for the purposes of Rule 49.10.

[8] On March 28, 2023, plaintiffs' counsel reiterated the offer to settle for $50,000 and specified that the offer remained open until the commencement of trial. This offer triggers cost consequences under Rule 49.10.

[9] The defendants state that they were not obliged to settle the litigation. While that is certainly correct, declining an offer to settle is not without consequences. The court should depart from Rule 49.10 only in exceptional circumstances, where this is required by the interests of justice: PreMD Inc. v. Ogilvy Renault LLP, 2013 ONCA 412 at para. 106. I am not satisfied that the interests of justice require a departure in this case.

[10] The plaintiffs were largely successful at trial. They were awarded damages in excess of their offer to settle of $50,000. The fact that the plaintiffs did not succeed on every argument or establish all the damages they claimed is not a basis to depart from Rule 49.10. I note that the defendants have provided no evidence of any inability to pay.

[11] At a pre-trial motion in December 2022, the plaintiffs unsuccessfully argued that Mr. Lajoie should be refused leave to represent the corporate defendant under Rule 15.01(2). The defendants describe the plaintiffs' position on the motion as vexatious and in bad faith. I do not agree. Mr. Lajoie was struggling to comply with the Rules and this was impacting the proceedings. In these circumstances, the plaintiffs' position on the Rule 15.01(2) motion – although unsuccessful -- cannot be described as vexatious or in bad faith.

[12] For these reasons, the plaintiffs are entitled to their costs on a substantial indemnity basis as of March 28, 2023. Prior to that date, the plaintiffs are entitled to their costs on a partial indemnity basis.

[13] Within 30 days, counsel for the plaintiffs is to provide defendants' counsel and the court with: (a) a revised bill of costs, identifying the legal work that was done before and after March 28, 2023; and (b) a draft order.

Date: August 18, 2025

The Honourable Justice M. Flaherty