Ryan v. Kaukab, 2014 ONSC 1968

Ryan v. Kaukab, 2014 ONSC 1968

CITATION: Ryan v. Kaukab, 2014 ONSC 1968

DIVISIONAL COURT FILE NO.: 461/12

DATE: 20140327

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

A.C.J.S.C. MARROCCO, SACHS AND NORDHEIMER JJ.

BETWEEN:

JIM RYAN IN TRUST and SLICK PROMOTIONAL IDEAS LIMITED c.o.b. as FOCUS CREATIVE CONCEPTS INC.

Plaintiffs

(Respondents to the Cross-Appeal)

– and –

NASEEM KAUKAB and SHAHIDA KAUKAB

Defendants

(Appellants by Cross-Appeal)

• and –

MICHAEL MARTIN, ANGELA MARTIN, ROYAL LEPAGE REAL ESTATE SERVICES LTD., SANDRA MCNEELY, EUGENE BUSSOLI and THE LEGAL LINK CORPORATION

Defendants

(Respondents to the Cross-Appeal)

AND BETWEEN:

NASEEM KAUKAB and SHAHIDA KAUKAB

Plaintiffs by Counterclaim

-and –

JIM RYAN personally, CLIVE MAILE, JIM RYAN IN TRUST and SLICK PROMOTIONAL IDEAS LIMITED c.o.b. as FOCUS CREATIVE CONCEPTS

Defendants to the Counterclaim

M. Michael Title, for the Plaintiffs, Jim Ryan In Trust and Slick Promotional Ideas Limited c.o.b. as Focus Creative Concepts Inc.

J. Sebastian Winny, for the Defendants (Appellants by Cross-Appeal)

Aaron Postelnik and Joseph Juda, for the Defendants, Michael Martin, Angela Martin and Royal LePage Real Estate Services Ltd.

HEARD at Toronto: March 27, 2014

ORAL REASONS FOR JUDGMENT

NORDHEIMER J. (orally)

1The defendants, Naseem Kaukab and Shahida Kaukab, appeal from the trial decision of Pepall J. dated November 17, 2011 and her subsequent costs decision dated August 16, 2012. In the trial decision, the trial judge dismissed the plaintiffs’ claim for damages in lieu of specific performance and for fraud and misrepresentation. The plaintiffs’ claim for restitution was granted for $20,000. The trial judge also dismissed the appellants’ counterclaim and their crossclaim against the defendant realtors. The defendant realtors’ crossclaim was also dismissed.

2In her costs decision, the trial judge awarded the plaintiffs costs in the amount of $150,000. She also awarded the defendant realtors costs in the amount of $116,152.99. In fixing both costs amounts, the trial judge reduced the amounts from those that the successful parties had sought. The reduction in the amount sought by the plaintiffs was in excess of $60,000 and the reduction in the amount sought by the defendant realtors was in excess of $100,000.

3In terms of the trial award, the appellants submit that the award of $20,000 ought to have been reduced to zero because the plaintiffs had earlier settled their claims against the defendant realtors and another party for $400,000. The appellants submit that by awarding the plaintiffs $20,000 the trial judge has allowed them to make a double recovery.

4I do not agree with that submission. The settlement agreement is very clear that the $400,000 is being paid in settlement of “all claims being advanced” against the settling defendants. The amended statement of claim advanced claims against the settling defendants in negligence, negligent misrepresentation and breach of contract.

5In terms of the appellants, there was a separate claim for a purchaser’s lien for improvements. Peppall J. distinguished Loudon v Roberts, 2009 ONCA 383, [2009] O.J. No. 1824 (C.A.) on the basis of the fact that the damages she awarded in this case were for a cause of action (a purchaser’s lien for improvements) that was only asserted against the appellants. In Loudon, at para 55, the settlement monies received were “on account of the same damage for which the plaintiff continued his proceeding against the … non contracting defendant.”

6In its further amended statement of claim, at paragraph 1(d), the plaintiffs claimed against the appellants for “a final order declaring that the plaintiffs are entitled to a purchaser’s lien for improvements”. That claim was not advanced, nor could it have been advanced, against the settling defendants. The trial judge awarded damages of $20,000 expressly on the basis of the principles applicable to a claim for a purchaser’s lien pursuant to s. 37 of the Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34. There is therefore no duplication in the damages between the settlement and the award and, consequently, there is no double recovery.

7In terms of the appeal on the costs awards, I begin with the proposition that the determination of costs is the quintessential exercise of discretion. In order to interfere with a costs award the appellants must show that there are strong grounds for interfering with the exercise of that discretion: Brad-Jay Investments Ltd. v. Szijjarto, [2006] O.J. No. 5078 (C.A.).

8The trial judge gave careful reasons for her decisions with respect to both costs awards. While the appellants had been successful in resisting some claims, they had lost on the one claim. The appellants had also been unsuccessful in their crossclaims against the defendant realtors. In fixing the plaintiffs costs at $150,000, the trial judge made two important points. One was that the appellants had sought costs of $125,000 so the award to the plaintiffs was comparable to what the appellants could reasonably expect. The other was that the conduct of the appellants was largely the cause of the litigation.

9In terms of the costs awarded to the defendant realtors, the trial judge first declined to award substantial indemnity costs. She fixed the amount of costs for the defendant realtors taking into account the importance of the issues to the defendant realtors and the fact that the appellants had asserted a separate damages claim against the defendant realtors. While recognizing that the amount awarded was large, the trial judge found that the appellants “were the authors of their own misfortune”.

10I cannot find any error in principle in the trial judge’s awards of costs. Undoubtedly, another trial judge might have settled on different amounts. That is inherent in the fact that the awarding of costs is a matter of discretion. The fact that different judges might reach different amounts does not render the awards made by the trial judge here in error.

11The appeal from the trial judgment is dismissed. The request for leave to appeal the costs awards is also dismissed.

A.C.J.S.C. MARROCCO

COSTS

12I have endorsed the Appeal Book and Compendium, “This appeal is dismissed for oral reasons released today. Costs to the plaintiff in the amount of $14,000 and costs to the

respondent Realtors at $9,500. Costs to the respondents is exclusive of an earlier interim costs award of $1,500.”

NORDHEIMER J.

A.C.J.S.C. MARROCCO

SACHS J.

Date of Reasons for Judgment: March 27, 2014

Date of Release: April 4, 2014

CITATION: Ryan v. Kaukab, 2014 ONSC 1968

DIVISIONAL COURT FILE NO.: 461/12

DATE: 20140327

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

A.C.J.S.C. MARROCCO, SACHS AND NORDHEIMER JJ.

BETWEEN:

JIM RYAN IN TRUST and SLICK PROMOTIONAL IDEAS LIMITED c.o.b. as FOCUS CREATIVE CONCEPTS INC.

Plaintiffs

(Respondents to the Cross-Appeal)

– and –

NASEEM KAUKAB and SHAHIDA KAUKAB

Defendants

(Appellants by Cross-Appeal)

• and –

MICHAEL MARTIN, ANGELA MARTIN, ROYAL LEPAGE REAL ESTATE SERVICES LTD., SANDRA MCNEELY, EUGENE BUSSOLI and THE LEGAL LINK CORPORATION

Defendants

(Respondents to the Cross-Appeal)