Court File and Parties

Court File No.: CV-22-691830 Date: September 15, 2025

Superior Court of Justice - Ontario

Re: E-Tech Electrical Services Inc. v. Churchill Three LP, Churchill Three Develco Inc., Diamante Development Corporation and Toronto Standard Condominium Corporation No. 2890

Before: Associate Justice C. Wiebe

Counsel:

• Howard L. Shankman for Toronto Standard Condominium Corporation No. 2890
• Jonathan Frustaglio for E-Tech Electrical Services Inc.

Decision: August 11, 2025

Costs Decision

[1] On August 11, 2025 I rendered my decision on the motion by Toronto Standard Condominium No. 2890 ("TSCC 2890") for summary judgment ending the involvement of TSCC 2890 in this action, which motion was argued on August 7, 2025. I dismissed the motion in its entirety.

[2] As directed, the parties served and filed written submissions on costs. E-Tech seeks substantial indemnity costs of $10,281.46, which is the substantial indemnity amount shown on its costs outline, $8,781.46, plus $1,500 for the preparation of its written costs submissions. TSCC 2890 submits that E-Tech should be awarded no more than the partial indemnity amount shown on the E-Tech costs outline not adjusted to account for the costs of the written costs submissions, namely the amount of $6,500.

[3] My jurisdiction concerning costs stems from Construction Act, R.S.O. 1990, c. C.30 ("CA") section 86. Section 86(1) authorizes the court to award substantial indemnity costs against a party that "delayed the conduct of the action."

[4] Given the result, E-Tech clearly should get costs. It was entirely successful on this motion. The question is the quantum to be awarded.

[5] Mr. Shankman argued that the core issue on the motion, the issue as to whether TSCC 2890 was a "home buyer" under CA section 1(1) was a novel point, and that the E-Tech award should be reduced to the partial indemnity amount as a result. There is authority for the proposition that where the case deals with an "underdeveloped area of the law" the costs award against the unsuccessful party should be reduced; see Przyk v. Hamilton Retirement Group, 2021 ONCA 267 at paragraph 8.

[6] But this core issue turned on what I described in my Reasons as "a plain, common-sense interpretation of the 'home buyer' provisions of CA section 1(1)." There was no mystery here. The definition of "home" in relation to a condominium unit clearly includes the common elements appurtenant to the unit, and the occupancy permit in issue clearly excluded the common elements appurtenant to the subject unit. I suspect that the reason for an absence of caselaw on this point is, as Mr. Frustaglio pointed out, that no one wanted to test the clear statutory definition on these facts. No one until TSCC 2890.

[7] In fact, I find that TSCC 2890's motion on this point as being of the kind that attracts an award of substantial indemnity costs under CA section 86(1), namely conduct that unreasonably delays the conduct of the action. In my view, the lack of merit on this core issue in the motion should have convinced TSCC 2890 not to bring the motion. Instead, it pressed on. As a result, the ordered discoveries pertaining to TSCC 2890 were delayed.

[8] The other aspects of the TSCC 2890 motion bolsters this view. The issue as to whether TSCC 2890 was an "owner" was supported in TSCC 2890's materials by dubious affidavits full of hearsay evidence. Furthermore, TSCC 2890 made no effort to cross-examine on the affidavits presented by E-Tech on this point, which affidavits undermined the TSCC 2890 position. Clearly, TSCC 2890 relied on the core issue of whether TSCC 2890 was a "home buyer," an issue which in my view did not justify this motion. As for the quantum meruit point, this issue was raised for the first time in oral argument, showing the moving party's desperation. It also did not justify this motion given the evidence presented.

[9] An issue was raised as to the reasonable expectation of the unsuccessful party, namely TSCC 2890. Its costs outline contains figures that were three times the size of the figures in E-Tech's costs outline. I accept Mr. Shankman's explanation that the TSCC 2890 costs outline pertains to the entire action not just this motion. This was done, he said, because there was potential in this motion for a dismissal of the entire action as against TSCC 2890. I do not, therefore, accept the TSCC 2890 costs outline as being a fair reflection of what TSCC 2890 could reasonably have expected to pay in the event of a defeat.

[10] Mr. Shankman in fact tried to turn this argument around. He argued that his client's costs evidence in fact justified a reduction of the award due to proportionality and what TSCC 2890 could reasonably expect to pay. He showed that there were only 18 hours for this motion in the dockets filed by TSCC 2890. This is opposed to the 28.5 hours showing on the E-Tech costs outline for this motion. These figures were not disputed.

[11] I do not accept this position. While there may be a disparity in the time spent by the parties, this motion was of vital importance to E-Tech as its entire lien claim and involvement in this reference were at stake. This merited the additional resources E-Tech committed to this motion. I also note that E-Tech took steps to have tasks performed by lawyers at lower rates whereas that was not the case with TSCC 2890.

[12] I find that the amount claimed by E-Tech for the preparation of these costs submissions to be somewhat excessive. I have also considered generally what a reasonable and fair award of substantial indemnity costs in the circumstances of this case is.

[13] In the end, I find that such a reasonable and fair award of costs of this motion is an award of substantial indemnity costs against TSCC 2890 in the amount of $9,000 to be paid by TSCC 2890 to E-Tech in thirty (30) days from today.

Date: September 15, 2025

Associate Justice C. Wiebe