Citation: One-Way Drywall Inc. v Lomax Management Inc., 2016 ONSC 2425 (CanLII)

via CanLII – 2016 ONSC 2425 (CanLII)

[5]               I award One-Way costs of $33,340.65, all inclusive, on a substantial indemnity basis.

[6]               Rule 20.06 of the Rules of Civil Procedure provides that the Court may fix and order payment of the costs of a motion for a summary on a substantial indemnity basis if the party acted unreasonably by making the motion or if the party acted in bad faith for the purposes of delay. I find as a fact that the Defendants acted unreasonably by making their audacious summary judgment motion.

[7]               I also find as a fact and alluding to rule 1.04, I conclude that in its execution, the Defendants’ unreasonable summary judgment motion was a tactical maneuver that turned out to be the opposite of the most expeditious and least expensive determination of the construction lien action on its merits. Either advertently or inadvertently, the Defendants’ summary judgment motion has delayed procedural and substantive justice in this construction lien action.

[8]               The disruptive and dysfunctional effect of the Defendants’ maneuver persists into the parties’ voluminous and argumentative costs submissions. One-Way submitted cost submissions of 234 pages (including 10 decisions) and a reply submission of 9 pages. The Defendants submitted costs submissions of 210 pages (including 8 decisions) and a sur-reply of 38 pages (including 1 decision). These submissions are largely a re-argument of and meta-argument about the summary judgment motion on its merits.

[9]               The Defendants’ summary judgment motion was poorly executed and it was and would have been ineffective to narrow the issues in the action because the proffered confession of judgment on the breach of trust claim was all of confusing and conditional.

[10]           The Defendants’ summary judgment motion was unreasonable and it was unsuccessful.

[11]           In its costs submissions, One-Way asks the court to find that the conduct of the Defendants was dilatory, egregious, reprehensible and ballsy and ought not to be condoned. Having found that the Defendants’ summary judgment motion was unreasonable under rule 20.06, I need not decide whether apart from rule 20.06, there are other grounds for awarding costs on a substantial indemnity basis, and I simply say that for present purposes I need not go outside rule 20.06 to support an award of substantial indemnity costs.

[12]           This conclusion focuses the analysis of the parties’ costs submissions to the normal questions of whether One Way’s substantial indemnity claim of $33,340.65 can be justified for the summary judgment motion in the particular circumstances of this case.

[13]           In my opinion, having reviewed the voluminous submissions of the parties and considered the well-known factors that guide the court’s discretion in awarding costs, an award of $33,340.65, all inclusive, is fair and reasonable for the Defendants to pay in the circumstances of the immediate case.

[14]           Order accordingly.

 

_____________________

Perell, J.

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