Indexed as:

Smith Bros. Excavating Windsor Ltd. v. Camion Equipment &

 Leasing Inc. (Trustee of)

Between

Smith Bros, Excavating Windsor Limited, Plaintiff, and

Price Waterhouse Limited, Trustee of The Estate of Camion

Equipment & Leasing Inc., A Bankrupt, Novalta Resources Ltd.,

and

Novacar Chemicals Ltd., Defendants

And Between

Smith Bros. Excavating Inc., A Creditor of the Estate of Smith

Bros. Excavating (Windosr) Limited, A Bankrupt, Plaintiff, and

Price Waterhouse Limited, Trustee of The Estate of Camion

Equipment & Leasing Inc., A Bankrupt, Novalta Resources Ltd.,

and

Novacor Chemicals Ltd., Defendants

[1994] O.J. No. 1943

Action No. 90-GD-12470

 Ontario Court of Justice - General Division

 Windsor, Ontario

Cusinato J.

August 31, 1994.

(4 pp.)

Practice -- Costs -- Party and party costs -- Entitlement to party and party costs -- Successful party, defendants.

This was an assessment of costs of the action in which the plaintiffs failed in their claim for damages for nuisance.

HELD: Party and party costs were awarded to counsel representing the separate defendants. This was a proper case for the defendants to be assisted by junior counsel. The principles upon which the derivative plaintiff proceeded with its action were unwarranted.

Ray Colautti and David Kunsch, for the Plaintiff.

Fred D. Cass and John J. Longo, for the Defendants, (except Camion).

Joseph Dillon, Q.C., Brown, Beattie and O'Donovan, for the Defendant, (Camion).

1 CUSINATO J.:-- In this matter the plaintiffs have failed in their claim for damages resulting from nuisance. By written submissions I am now prepared to dispose of the issue of costs. The usual principle applicable to costs is that upon conclusion of the litigation to the victor follows the spoils; and the successful party should be entitled to its costs.

2     Orkin in his book, The Law of Costs, states that costs should follow the event, and that this rule should be followed save for exceptional reason to do otherwise.

3     In my review of the principles upon which the derivative plaintiff proceeded to its action, they were unwarranted. This action was continued by order of this court under the provisions of the Bankruptcy Act.

4     After production of documents by the plaintiff, the defendants in correspondence to the plaintiff's solicitor set out specific reasons why they withdrew their earlier written offer to settle. This course of action was carried out by the defendants based on the materials produced.

5     The pursuit and continuation then of this claim for damages by this derivative plaintiff with full knowledge of the defendants position carried with it the risk of costs.

6     In my Reasons for Judgment, I confirm that the position taken by the original plaintiff and later pursued by the derivative plaintiff as to its intent to pursue a sub-division within specific time limits was a creation after the fact. Upon the exhibits filed, it was clear that the plaintiff had abandoned its intent to proceed with their original plans prior to being made aware of the nuisance.

7     As to this courts finding of nuisance, that consideration applying it to the relevant time frame was not as important as the issue of whether any damage flowed from the nuisance established. On this issue the plaintiffs failed completely.

8     I see no reason under these circumstances to avoid the payment of party party costs to counsel representing the separate defendants as assessed subject to these restrictions. As to counsel for Camion, party party costs as assessed. As to counsel for the balance of the defendants, party party costs assessed on the appropriate scale. For the purpose of assessing costs, I have determined this was a proper case for the defendants to be assisted by junior counsel. I have designated for assessment purposes, Fred Cass as senior counsel, and John Longo as junior counsel. Each of their costs are to be assessed on the appropriate scale.

9     If there were experts assisted by the defendants who were not called at the trial or in the alternative whose reports were not filed, then in such event their costs shall not be the subject of assessment.

CUSINATO J.

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