Executive Summary: Key Legal and Evidentiary Issues

• Symtech's motion opposing confirmation of a referee's report granting partial summary judgment in a construction lien matter was dismissed, triggering the question of costs.
• Whether the costs of the review should be deferred to the final determination of the reference was the first issue before the court.
• Determining a fair and reasonable quantum of costs, under s. 131(1) of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, was the second issue.
• Siemens sought $40,872.16 on a partial indemnity basis, while Symtech argued the costs should be deferred or reduced to $30,000.
• Evidentiary considerations included the absence of detailed docket entries from Siemens and the parties' respective hourly rates and time spent.
• The court used Symtech's own partial indemnity costs of $33,462.18 as a benchmark for the parties' reasonable expectations.

Facts of the case

Symtech Innovations Ltd. brought a motion to oppose the confirmation of a report from a referee in a construction lien matter, in which the referee had granted a partial summary judgment. Justice Des Rosiers of the Ontario Superior Court of Justice dismissed the motion, finding that the referee had considered the appropriate test and applied it in a reasonable manner that did not amount to an error justifying overruling the referee. Following that dismissal, the defendant Siemens Canada Limited claimed costs of the motion in the amount of $40,872.16 on a partial indemnity basis, inclusive of counsel fee, H.S.T., and disbursements. Symtech argued that any costs award should be deferred to the final disposition of the reference or, alternatively, reduced to $30,000. This decision, released on July 2, 2026, deals solely with those costs.

Statutory and procedural provisions at issue

No insurance policy terms or contractual clauses were at issue in this decision; the dispute turned on costs rules and statutory discretion. Under r. 57.03 of the Rules of Civil Procedure, costs on a motion should be determined following the motion decision. Pursuant to s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, costs are in the discretion of the court, and Rule 57 sets out the factors courts should consider. The overall objective, drawn from cases such as Zesta Engineering Ltd. v. Cloutier and Boucher v. Public Accountants Council for the Province of Ontario, is to fix an amount that is fair and reasonable for the unsuccessful party to pay, rather than an amount fixed by the actual costs incurred by the successful litigant.

The court's reasoning and analysis

On the deferral question, Symtech pointed out that Associate Justice Robinson had reserved the costs of the proceedings leading to the partial summary judgment to the final determination of the reference, and argued the costs of the review should be treated the same way. The court disagreed, reasoning that the motion before it was a review of the Associate Justice's decision, that it was appropriate for costs to follow the determination of the review, and that costs should generally be awarded for every step of the litigation process. On entitlement, the court cited the general rule that successful parties have a reasonable expectation their costs will be paid by the unsuccessful party, and was satisfied that Siemens was entitled to its costs of the motion. Turning to quantum, the court noted that the vast majority of the work was carried out by an articling student whose hourly rate of $425 amounts to $255 on a partial indemnity basis, while Mr. Stanek, counsel with 23 years of experience, charges $1,150 per hour ($690 on a partial indemnity basis) and completed 31.4 hours on the matter. Siemens did not file detailed docket entries. By comparison, Symtech's costs for the motion on a partial indemnity basis were $33,462.18, with senior counsel Mr. Bisceglia, a 1993 year of call, charging $600 per hour. Since the amount claimed by Symtech was less than Siemens' claim, the court concluded that $35,000 was closer to the reasonable expectations of the parties, while also acknowledging that a substantial amount of money was at stake, the action was important to both parties, and the issues involved an extensive record and were relatively complex.

Ruling and overall outcome

The court declined to defer the costs award and fixed a reduced amount rather than granting the full sum claimed. Siemens Canada Limited/Siemens Canada Limitée emerged as the successful party, with costs of $35,000 ordered payable by the plaintiff Symtech within 30 days — less than the $40,872.16 Siemens sought, but more than the $30,000 reduction Symtech had proposed.