2010 ONSC 7199, 2010 ONSC 7199

CITATION : Cotton Inc. v. 1397945 Ontario Limited et al.; Cotton Inc. v. 1397945 et al.; Walter Ledwez Limited v.

Herbert Ledwez et al. 2010 ONSC 7199 COURT FILE NO.: 12120/01; 12392/01; 12295/01 DATE: 2010-12-24 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Cotton Inc., plaintiff and 1397945 Ontario Limited, CDN Capital Corporation and Inter-fund Mortgage Corp., defendants; Cotton Inc., plaintiff and 1397945 Ontario Limited, Inter-fund Mortgage Corp., Guardian Inter-funding Inc. and Niagara Home Builders Inc., defendants Walter Ledwez Limited, plaintiff and Herbert Ledwez, 1397945 Ontario Limited, CDN Capital Corporation, Inter-fund Mortgage Corp., Guardian Inter-funding Inc., defendants BEFORE: Mr Justice Ramsay COUNSEL: Mr Peter Mahoney for Cotton Inc., plaintiff Mr John K.

Lefurgey for Walter Ledwez Limited, plaintiff Mr Clark Peddle for CDN Capital Corporation, defendant HEARD: 2010-12-24 ENDORSEMENT [ 1 ] The plaintiffs in three related actions moved successfully for

summary judgment ( 2010 ONSC 6548 ).

They now ask for costs. [ 2 ] Cotton Inc. in its two actions, and Walter Ledwez Ltd on behalf of itself and the consolidated claimants in the third action, are entitled to a. costs of the motion before Festeryga J. of February 8, 2008, which were reserved by him to the trial judge, b. the costs reserved to the trial judge by Henderson J. on September 24, 2010, c. the costs of the present motion, and d. the costs of the actions. [ 3 ] To my mind, the following factors are significant: a. complete recovery by the plaintiffs, b. the amount at stake, c. the defendant’s refusal of an offer that does not fall within Rule 49, but that would have procured a more favourable result, d. the phoney assignment (see 2010 ONSC 6548 ¶12), e. the work done and the seniority of counsel, and f. the principle that construction lien law encourages the prompt payment of contractors. [ 4 ] I order the defendant to pay costs on a substantial indemnity basis.

I fix those costs at $70,000 for Cotton Inc. and at $85,000 for the consolidated plaintiffs. [ 5 ] I have also been asked to quantify the prejudgement interest, and to give directions to the trustees as to payout of the amount held in trust. I accept the figures provided by the plaintiffs, which were not contested by the defendant. [ 6 ] Cotton Inc. is given judgment in the amount of $225,474.47 plus prejudgment interest of $120,310.98 as the total for its two actions.

The consolidated claimants are given judgment in the amount of $499,597.82 plus prejudgment interest of $222,792.51. [ 7 ] Unopposed, I direct the trustees of the money set aside by order of Festeryga J. to pay out the plaintiffs as follows: a. first, the principal amounts of the judgments; b. second, the costs awarded, and c. third, from the remaining money, the interest awarded, pro rata as between Cotton Inc. and the consolidated claimants.

[ 8 ] As requested by counsel for the consolidated claimants, I direct that the consolidated claimants shall divide their proceeds amongst themselves as they agree. J.A. Ramsay J. Date: 2010-12-24