Sean Clarke

Burnco Manufacturing Inc. was successful on a motion to have two actions tried together and sought partial indemnity costs of $37,248.71.

Ellisdon Corporation and E.S. Fox Limited, who had opposed the underlying motion and conducted cross-examinations, argued the amount sought was excessive.

The Master, applying principles of fairness, reasonableness, and proportionality, and considering factors such as the motion's complexity, counsel's seniority, and actions that prolonged the motion, reduced Burnco's costs.

The final award was $20,000, inclusive of fees, HST, and disbursements, to be shared equally by Ellisdon and Fox.

The plaintiff subcontractor brought a motion under Rule 6.01 to have its action against the general contractor tried together with or immediately following a companion action brought against it by its sub-subcontractor.

Both actions arose from delays and scope changes on the same construction project.

The court applied the Master Dash factors and concluded that the actions shared interwoven issues regarding project changes and delays, creating a risk of inconsistent findings if tried separately.

The motion was granted, and the court ordered the actions to be tried consecutively, with the plaintiff's action proceeding first.

The defendant moved for security for costs against a corporate plaintiff under Rule 56.01(1)(d), alleging there was good reason to believe the plaintiff lacked sufficient assets in Ontario to satisfy a potential costs award.

Although the court found evidence suggesting financial instability and concluded the moving party met the initial threshold and obtained leave under the Construction Lien Act, the motion ultimately failed.

The court held that the plaintiff had not met the high evidentiary burden to prove impecuniosity that would defeat the motion.

However, the defendant’s unexplained delay in bringing the motion, breach of case management directions, and the existence of substantial counterclaims arising from the same facts rendered an award of security for costs unjust.

The motion was therefore dismissed.