2013 ONSC 6120, 2013 ONSC 6120

CITATION : Cruickshank Construction Limited v. Durrett Companies Limited , 2013 ONSC 6120 COURT FILE NO.: 12-54963 DATE: 2013/09/30 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Cruickshank Construction Limited, Plaintiff (Respondent on the Motion) AND Durrett Companies Limited, Cornwall Gravel Co. Ltd., Peter Grant, David Grant and Christopher Piper, Defendants (Applicants on the Motions) BEFORE: Mr. Justice Robert J. Smith COUNSEL: John P. O’Toole, for the Plaintiff (Respondent on the Motions) Mathew J.

Halpin / Jenna de Jong, for the Defendants (Applicants on the Motions), Durrett Companies Limited, Cornwall Gravel Co. Ltd., Peter Grant and David Grant Robert E. Houston, Q.C., for the Defendant (Applicant on the Motions), Christopher Piper HEARD: By Written Submissions E N D O R S E M E N T R E G A R D I N G C O S T S (MOTIONS FOR

SUMMARY JUDGMENT) Overview [ 1 ] The defendants, Durrett Companies Limited et al . (“Durrett”) and Christopher Piper (“Piper”), brought motions for

summary judgment seeking a dismissal of the action commenced against them. The plaintiff, Cruickshank Construction Limited (“Cruickshank”), successfully defended the

summary judgment motions brought by Piper and Durrett. Positions [ 2 ] Cruickshank seeks costs on a partial indemnity basis in the amount of $40,818.49 inclusive of HST. The motions were argued over a two-day period on February 27 and 28, 2013. Cruickshank submits that it was successful on all issues. Cruickshank submits that it was successful in defending all aspects of the motions for

summary judgement, as the Agreement was found to be a lease which was renewed from year to year after March 31, 2006, and Durrett was not successful in obtaining an order for immediate exclusive possession of the quarry property. Cruickshank further submits that the issues referred to trial were consistent with the position advocated by Cruickshank in its Factum and in its oral submissions. [ 3 ] Piper submits that the costs of an unsuccessful motion for

summary judgment should be left to the trial judge. The motion was brought in an attempt to shorten the proceedings and there was nothing improper or vexatious with respect to the motion. Piper submits that there should be no order as to costs and, in the alternative, costs should be deferred to a judge hearing the trial following the decision of Power, J. in Spiral Aviation Training Company, LLC v.

Canda (Attorney General) , 2011 ONSC 239 , 2011 CarswellOnt 90. [ 4 ] Durrett also argues that no costs should be awarded in these motions or, in the alternative costs should be deferred to the trial judge to be dealt with after the main issues are decided. Durrett submits that success on the motions for

summary judgment was split as a number of heads of relief sought by Cruickshank were not granted, such as specific performance, vesting title to the plaintiff, nullifying the sale of the Iroquois quarry property to Durrett, ordering Cornwall Gravel to remove all of its equipment and personnel from the property, a declaration of oppression, and an award of damages. [ 5 ] Durrett submits that a number of issues have been directed to be determined by trial, namely, was the right of first refusal renewed by the conduct of the parties; secondly, did Piper make an offer that Cruickshank could accept thereby matching Durrett’s Offer to Purchase for $850,000.00; thirdly, did Cruickshank match the terms contained in Durrett’s Offer to Purchase for $850,000.00; and finally, if the right of first refusal was renewed along with the lease, did Piper breach it by failing to give Cruickshank an opportunity to match Durrett’s Offer for $950,000.00. [ 6 ] The factors to be considered when fixing costs are set out in Rule 57 of the Rules of Civil Procedure and include, in addition to success, the amount claimed and recovered, the complexity and importance of the matter and the principle of proportionality, the conduct of any party which unduly lengthened the proceeding, whether any step was improper, vexatious or unnecessary, or taken through negligence, mistake or excessive caution, a party’s denial or refusal to admit anything, any offer to settle, the principle of

indemnity, scale of costs, hourly rate claimed in relation to the partial indemnity rate set out in the Information to the Profession effective July 1, 2005, the time spent, and the amount that a losing party would reasonably expect to pay. Success [ 7 ] In this case, Cruickshank was substantially successful on the issues that were argued during the

summary motion. However, as submitted by Durrett, a number of issues remain to be determined at trial. The defendants, Piper and Durrett, were not successful on the numerous requests for relief contained in their motion for

summary judgment. I conclude that Cruickshank was substantially successful in defending against the motions for

summary judgment. Some issues were deferred to trial and Cruickshank was not allowed to argue its motion for

summary judgment. Complexity and Importance [ 8 ] The matters and issues were above average in complexity as the argument on these two

summary motions issues occurred over two days. In addition the parties conducted cross-examinations on affidavits and lengthy transcripts of those cross-examinations were produced. There were some complex issues of law involved in the motion. The issues on the

summary judgment motions were important to the parties as they could have resulted in a complete dismissal of the plaintiff’s action. Conduct of Any Party [ 9 ] I find that both Piper and Durrett brought their motions for

summary judgment with the objective of shortening the proceedings and there was nothing improper or vexatious about their conduct in so doing. I also find that Durrett and Piper’s decision to bring a motion for

summary judgment was not unreasonable in the circumstances. Scale of Costs, Hourly Rates, Time Spent and Proportionality [ 10 ] Cruickshank seeks costs on a partial indemnity scale and I find there is no conduct or other circumstances that would justify awarding costs on a substantial indemnity scale. Costs will be awarded on a partial indemnity scale. Neither Durrett nor Piper have commented on the hourly rates or the amount claimed by Cruickshank in their submissions, and I infer that they do not contest the hourly rates claimed or the amount sought. Cruickshank had to prepare for two complex, lengthy

summary judgment motions which were very important to the plaintiff. Amount the Unsuccessful Party Would Reasonably Expect to Pay [ 11 ] I find that the time spent was proportional to the complexity and importance of the issues. I further find that the amounts claimed are within the range of what the unsuccessful parties would reasonably expect to pay. Disposition [ 12 ] Rule 57.03(1) provides that costs should be fixed on hearing of a contested motion unless a different order would be more just.

I am not persuaded that the circumstances of this case justify a departure from the Court’s usual practice of awarding costs to the successful party following an interlocutory motion. In this case, a number of issues were resolved in favour of Cruickshank, and the

summary judgment motions brought by Piper and Durrett were dismissed. These facts distinguish this case from those of Spiral Aviation . [ 13 ] Having considered all of the above factors and the fact that the plaintiff was successful in defending against the

summary judgment motions, that not all issues were resolved in favour of Cruickshank as a number of issues remain to be dealt with at trial, and the conduct of the defendants in bringing a motion by the defendants was not unreasonable, the defendants are ordered to pay costs in the amount of $25,000.00 plus HST plus disbursements of $3,000.00 inclusive of HST. ___________________________ R. Smith J. Date: September 30, 2013

CITATION : Cruickshank Construction Limited v. Durrett Companies Limited , 2013 ONSC 6120 COURT FILE NO.: 12-54963 DATE: 2013/09/30 ONTARIO SUPERIOR COURT OF JUSTICE RE: Cruickshank Construction Limited, Plaintiff (Respondent) AND Durrett Companies Limited, Cornwall Gravel Co. Ltd., Peter Grant, David Grant and Christopher Piper, Defendants (Applicants) BEFORE: Mr. Justice Robert J. Smith COUNSEL: John P. O’Toole, for the Plaintiff (Respondent) Mathew J. Halpin / Jenna de Jong, for the Defendants (Applicants), Durrett Companies Limited, Cornwall Gravel Co. Ltd., Peter Grant and David Grant Robert E.

Houston, Q.C., for the Defendant (Applicant), Christopher Piper ENDORSEMENT REGARDING COSTS (MOTIONS FOR

SUMMARY JUDGMENT) R. Smith J. Released: September 30, 2013