2013 ONSC 7135, 2013 ONSC 7135

CITATION : Royal Oak v. Quality, 2013 ONSC 7135 COURT FILE NO.: 2965/09 DATE: 2013-11-18 SUPERIOR COURT OF JUSTICE – ONTARIO RE: Royal Oak Railing and Stair Ltd. v. Quality Engineered Homes Ltd. BEFORE: D.L. Edwards J. COUNSEL: M. Wainberg, for the Plaintiff R.

Dowhan for the Defendants HEARD: September 24, 2013 E N D O R S E M E N T [ 1 ] On October 16, 2013 I released Reasons for Judgment and requested cost submissions. [ 2 ] In my Judgment I ordered that Quality Engineered Homes Ltd (“QEH”) pay to Kirsteen Dies and David William Dies (“Dies”) the sum of $8,820. [ 3 ] I have received and reviewed the cost submissions. [ 4 ] The Dies seek a cost award in the amount of $26,072.17 on a partial indemnity basis. [ 5 ] They submit that, as the successful party, they are entitled to costs, and that there were no unnecessary costs incurred.

Further, the examinations for discovery were valuable as they clarified issues and amounts in dispute and shortened the trial. [ 6 ] QEH submits that as it was successful in dismissing the majority of Dies’ claims, it is entitled to costs on a partial indemnity scale. [ 7 ] QEH asserts that the Dies claimed 11 defects and deficiencies in relation to the construction of the home. After three days of trial 8 of the 11 claims were dismissed.

Of the $75,000 claimed only $8,820 was awarded. [ 8 ] On this basis QEH submits that the divided success favoured it and it should receive costs on a partial indemnity basis of $14,752.13. [ 9 ] In the alternative, there should be no costs awarded as there was divided success; the award of damages falls within the monetary limit of the Small Claims Court; and as the award of damages was less than $100,000.00, the action should have been pursued under the Simplified Procedure rules.

[ 10 ] Although the Dies were partially successful, for the reasons set out below, I am satisfied that this is an appropriate case for each party to bear its own costs. [ 11 ] I appreciate that matter initially arose as a lien action; however when the lien action settled, there was no reason that this contract dispute could not have been pursued through the Small Claims Court. [ 12 ] The amount awarded to the Dies was less than half of the monetary limit of the Small Claims Court.

As per Rule 57.05 I have the discretion to order that the plaintiff not recover its costs, and I exercise such discretion to make no order as to costs. [ 13 ] Additionally, once the lien action was dismissed, this matter could have gone by way of the simplified procedure. Rule 76.13(3) prohibits the court from awarding costs to the plaintiff unless it determines that the decision to proceed by normal procedure was reasonable.

I am not satisfied that such a decision was reasonable. [ 14 ] Finally, the Dies asserted a number of claims that were without merit and which lengthened the trial. [ 15 ] Accordingly, I make no award as to costs. ___________________________ D.L. Edwards J. DATE: November 18, 2013 CITATION : Royal Oak v. Quality, 2013 ONSC 7135 COURT FILE NO.: 2965/09 DATE: 2013-11-18

SUPERIOR COURT OF JUSTICE – ONTARIO RE: Royal Oak Railing and Stair Ltd. - and - Quality Engineered Homes Ltd. BEFORE: D.L. Edwards J. COUNSEL: M. Wainberg, for the Plaintiff R. Dowhand, for the Defendants ENDORSEMENT D.L. Edwards J. DATE: November 18, 2013