The plaintiff registered a lien against the defendants’ property and commenced
an action claiming $523,068.52. The action was dismissed and the defendants’
counterclaim for damages to repair deficiencies was allowed. The court then ruled
Held, the defendants should be awarded full indemnity costs; costs should be
awarded against the plaintiff’s principal personally.
M, the plaintiff’s principal (and a non-party to the action), lied, fabricated
evidence, altered documents and created false paper trails in order to advance the
plaintiff’s claim. The plaintiff also engaged in unreasonable tactics in the conduct
of the case, such as last minute productions contrary to the court-ordered timeline
and failing to admit uncontroverted facts, thereby necessitating the calling of
witnesses and unnecessarily extending trial time. M’s egregious conduct justified
an award of costs on a full indemnity basis. M’s conduct amounted to an abuse of
process. In the circumstances, it was appropriate to award costs against M personally.
Costs were not awarded against M’s brother J, also a non-party. The evidence did
not establish that the plaintiff was advanced to shield J from personal liability for
costs. While there was evidence of dishonesty on J’s part as it related to his taxes
and financial dealings, it was M who orchestrated the scheme to deceive the court.
J’s misconduct was not in relation to the litigation. Costs were awarded in the
amount of $578,973.29, payable by the plaintiff and M jointly and severally.
1318847 Ontario Ltd. v. Laval Tool & Mould Ltd. (2017), 134 O.R. (3d) 641,
 O.J. No. 1098, 2017 ONCA 184, 411 D.L.R. (4th) 340, 276 A.C. W.S. (3d) 46;
Canadian Affordable Roofing Ltd. v. Law,  O.J. No. 3817, 186 A.C. W.S. (3d)
603 (S.C.J.), consd
Other cases referred to
Deep Foundations Contractors Inc. v. B. Gottardo Construction Ltd.,  O.J.
No. 2015, 2016 ONSC 2612, 52 C.L.R. (4th) 288, 265 A.C.W.S. (3d) 846 (S.C.J.);
Marcos Limited Building Design Consultants v. Ishver,  O.J. No. 2852, 2018
ONSC 3273, 82 C.L.R. (4th) 57, 295 A.C.W.S. (3d) 70 (S.C.J.); Mitchell v. Lewis
(2016), 134 O.R. (3d) 524,  O.J. No. 6286, 2016 ONCA 903; Net Connect
Installation Inc. v. Mobile Zone Inc. (2017), 140 O.R. (3d) 77,  O.J. No. 5150,
2017 ONCA 766; Petrelli Construction & Renovation Inc. v. Phillips,  O.J.
No. 6798, 2016 ONSC 8159, 73 C.L.R. (4th) 275, 275 A.C.W.S. (3d) 697 (S.C.J.);
Tsymbalarou v. Gordon,  O.J. No. 4927, 2013 ONSC 6406 (S.C.J.)
Statutes referred to
Construction Act, R.S.O. 1990, c. C.30, s. 86 [as am.], (1) [as am.]
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1)
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 49
RULING on costs.
Gregory N. Hemsworth, for plaintiff and Manny Marcos.
Jonathan Speigel, for defendants Ishver and Sumitra Lad.
Ted Evangelidis, for non-party Jose Luis Marcos.
 Costs endorsement of SEPPI J.: — As noted in the reasons
for judgment dated May 29, 2018 [ O.J. No. 2852, 2018