Mr. Greek Restaurants Inc. v. MNP Ltd., 2012 ONSC 5569
DIVISIONAL COURT FILE NO.: 203/12
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
MR. GREEK RESTAURANTS INC.
Applicant
(Moving Party)
– and –
MNP LTD. (Trustee in Bankruptcy of Mr. Greek Realty Limited), FERRIER INVESTMENTS LTD., KENNEDY COMMONS INC., 151516 CANADA INC., T-HAMPSHIRE GATE HOLDING LTD., ORLANDO CORPORATION, RIOTRIN PROPERTIES (BRAMPTON) INC., PENRETAIL MANAGEMENT LTD., CARMELA BATTISTA, YONGE KINGSTON CENTRE INC., LIMESTONE GALLERY INVESTMENTS INC.
Respondents
(Penretail Management Ltd., Responding Party)
Jean-Marc Leclerc, for the Applicant
Bradley Phillips, for the Responding Party, Penretail Management Ltd.
HEARD at Toronto: October 1, 2012
KITELEY J. (ORALLY)
1On March 9, 2012, Spence J. dismissed a motion brought against two landlords of a bankrupt tenant with this endorsement:
The order sought by the Applicant would effectively alter the 3 month period prescribed by s. 38 of the BIA. Based as [sic] Hancock’s T.V. [1978] O.J. No. 3557 (C.A.) at paras. 9 – 12, this court does not have jurisdiction to make such an order. The order sought would simply give the Applicant an unjustified advantage on the negotiations which will ensue between it and the landlords. Accordingly, the motion of the applicant is dismissed.
2Justice Spence asked for and received written submissions as to costs. Counsel for the respondent Penretail asked for costs on a substantial indemnity scale in the sum of $33,522.71. The costs outline he provided indicated that that amount represented actual costs, not substantial indemnity costs and that partial indemnity costs totalled $25,278.71. He made an endorsement as follows:
Costs payable by Mr. Greek Restaurants Inc. of $26,500 to Penretail and $3,500 to T- Hampshire Gate Holdings, all inclusive, within 30 days.
3This is a motion for leave to appeal from the decision as to costs. Counsel for the applicant recognizes the heavy burden in persuading a court to grant leave on a question of costs. Leave is only granted sparingly and only in obvious cases where the party seeking leave convinces the court that there are “strong grounds upon which the appellate court could find that the judge erred in exercising his discretion” or was plainly wrong.
4Counsel for the applicant also accepts the proposition that the absence of reasons on a costs award is not grounds in itself for granting leave to appeal. He noted that while brief and to the point, the reasons for dismissing the motion were clear and understandable. By contrast, he argued that Spence J. received extensive submissions but it is neither clear nor understandable why he made the order he did. Counsel argued that there were 4 reasons for seeking leave. First, it was unclear how the amount was calculated and whether it was a percentage of actual and if so what percentage? Second, the written submissions indicated that the landlord had served an offer to settle on March 5 for a March 9 motion and consequently the rule that attracted substantial indemnity costs did not apply. Third the offer to settle did not meet other criteria in Rule 49. Fourth, the costs outline included attendances on two occasions for mediation with Morawetz J., which, on the basis of Saltsov v. Rolnick, 2010 ONSC 6645, 89 C.C.E.L. (3d) 71 (Div. Ct.) ought not to be included.
5I do not grant leave for these reasons. The extensive written submissions show that there were ample and multiple grounds upon which Spence J. exercised his discretion in awarding costs in favour of the landlord, including the following. The motion was served on an urgent basis on February 27 returnable February 28 and ultimately heard March 9 with two scheduling attendances and a settlement conference with Morawetz J. It would have been apparent to Spence J. the effort that counsel for the landlord had to make to prepare materials and submissions. The motion was dismissed and as a result the application was also disposed of, indicating resounding success. While Spence J. was not referred to Satsov, I agree that the principles relating to including costs for attending mediation are not applicable where it was, in effect, a settlement conference by a judge. It would have been apparent to Spence J. that the Penretail landlord did far more work than the T- Hampshire landlord and consequently the significant discrepancy in the amounts awarded was justified. While the offer was served within the seven day window, and therefore does not attract substantial indemnity costs, the court is permitted to consider any offer made at any time and on different scales.
6I cannot determine exactly the reasons upon which Spence J. made the decision. That is not my task. I am satisfied that there was ample reason for doing what he did and the record discloses a proper basis for the decision.
7I am not persuaded that intervention is warranted. The motion for leave is dismissed.
COSTS
8I have endorsed the Motion Record, “For oral reasons given (which will be reduced in writing), motion for leave is dismissed. Costs payable by the applicant to Penretail in the amount of $5,000, payable within thirty days.”
KITELEY J.
Date of Reasons for Judgment: October 1, 2012
Date of Release: October 9, 2012
CITATION: Mr. Greek Restaurants Inc. v. MNP Ltd., 2012 ONSC 5569
DIVISIONAL COURT FILE NO.: 203/12
DATE: 20121001
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY J.
BETWEEN:
MR. GREEK RESTAURANTS INC.
Applicant
(Moving Party)
– and –
MNP LTD. (Trustee in Bankruptcy of Mr. Greek Realty Limited), FERRIER INVESTMENTS LTD., KENNEDY COMMONS INC., 151516 CANADA INC., T-HAMPSHIRE GATE HOLDING LTD., ORLANDO CORPORATION, RIOTRIN PROPERTIES (BRAMPTON) INC., PENRETAIL MANAGEMENT LTD., CARMELA BATTISTA, YONGE KINGSTON CENTRE INC., LIMESTONE GALLERY INVESTMENTS INC.
Respondents
(Penretail Management Ltd., Responding Party)
ORAL REASONS FOR JUDGMENT
KITELEY J.
Date of Reasons for Judgment: October 1, 2012
Date of Release: October 9, 2012