) ) WEST CARLTON CONCRETE CORP. v. DALMA FORMING INC., 2011 ONSC 3403

CITATION: West Carlton Concrete Corp. v. Smavila Forming Ltd., 2011 ONSC 3403 COURT FILE NO.: 10-48975 DATE: 2011/06/06 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) WEST CARLTON CONCRETE CORP. andDALMA FORMING INC. Plaintiffs – and – SMAVILA FORMING LTD., DEBBIESMITH and EDDY AVILA Defendants ) ) ) ) ) ) ) ) ) ) )) Allison A. Russell, for the PlaintiffsKevin Kavanagh/Christopher S. Spiteri, for theDefendants ) HEARD: By written submissions DECISION ON COSTS Annis J. [1] By my order dated May 17, 2011, the plaintiffs, West Carlton Concrete Corp. (“West Carlton”) and Dalma Forming Inc.(“Dalma”) obtained

summary judgment in the amounts claimed of $56,109.83 and $9,683.63 respectively, plus interest and costs. [2] The plaintiffs now seek costs either on a substantial indemnity basis or an amount that reflects a Rule 49 offer to settle. [3] The plaintiffs submitted a form 57B costs outline setting out the hours worked which mainly comprised those of Ms.Russell. Her hourly tariff is $220.00 which I find appropriate given her 2005 call.

I also accept 56.4 hours worked on the file, whichalthough somewhat greater than anticipated, I consider appropriate as the defendants’ conduct contributed to the time expended. [4] I also note that the defendants have failed to disclose their own costs. I accept the plaintiffs’ argument that the inferencemust be that the unsuccessful party “devoted as much time or more time and money in an attempt to defeat the motion”: (see Andersen v.St. Jude Medical Inc. (2006), (ON SCDC), 264 D.L.R. (4th) 557, 2006 CarswellOnt 710 (Ont. Div.

Ct.) atparagraphs 25-27) [5] I am not prepared to order costs on a substantial indemnity basis as was argued by the plaintiffs based upon some of mycriticisms of the conduct of the defendants described in the reasons for my decision. [6] While I am somewhat critical of how the matter was litigated, substantial indemnity costs are the exception and not the rule.

In no way could it be said that the conduct of the defendants was reprehensible, outrageous or otherwise approached that necessary tojustify an award of costs on a substantial indemnity basis. [7] In any event, some increase in costs awarded the plaintiffs has already been acknowledged as a result of the defendants’conduct by my accepting that their conduct increased the hours worked by the plaintiffs on the case. [8] I am however, prepared to increase the award of costs to reflect in some degree the failure of the defendants to accept theplaintiffs’ offer to settle made on March 31, 2011, even though it only remained open for acceptance for two days. [9] The defendants argue that the plaintiffs’ offer should not be given any consideration because it contained no element ofcompromise, relying upon Data General (Canada) Ltd. v.

Molnar Systems Group Inc. (1991), (ON CA), 6 O.R. (3d)409 (C.A.). [10] I disagree that no element of compromise was contained in the plaintiffs’ offer. It was for $65,000.00 inclusive of interest andcosts. By my order the plaintiffs obtained $65,793.46, plus interest and costs. [11] Moreover, on the day preceding the return of the motion, the defendants advised that of original claims of $56,109.83 and$9,683.63, they would only be disputing the invoices of West Carlton and Dalma in the amount of $26,860.15 and $5,823.96respectively.

[ 12 ] By delaying admitting these claims to the day before the motion, the defendants effectively foreclosed settlement discussions that might have completely resolved the matter. It is difficult to justify litigation as the claims are reduced making final settlement a more attractive proposition. [ 13 ] Accordingly, I award the plaintiffs costs against the defendants jointly and severally in the amount of $11,500.00, inclusive of HST and disbursements. Mr. Justice Peter Annis Released: June 6, 2011 CITATION : West Carlton Concrete Corp. v.

Smavila Forming Ltd., 2011 ONSC 3403 COURT FILE NO.: 10-48975 DATE: 2011/06/06 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: WEST CARLTON CONCRETE CORP. and DALMA FORMING INC. Plaintiffs – and – SMAVILA FORMING LTD., DEBBIE SMITH and EDDY AVILA Defendants DECISION ON COSTS Annis J. Released: June 6, 2011