CITATION: 673830 Ontario Limited. v. M.T.C.C. No. 673 2014 ONSC 2364

DIVISIONAL COURT FILE NO.: 405/13

DATE: 20140415

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: 673830 ONTARIO LIMITED v. METROPOLITAN TORONTO CONDOMINIUM CORPORATION 673, HOWARD SHELDON, THOMAS BERARDO and JOHN MALMHOLT

BEFORE: KITELEY, NORDHEIMER & HARVISON YOUNG JJ.

COUNSEL: J. H. Fine, for the applicant (appellant) P. Greco, for the respondent

HEARD: Written submissions

ENDORSEMENT – COSTS

[1] On March 18, 2014, this court released its decision allowing the appeal, setting aside the order below and granting in its place certain relief as set out in our reasons. The appellant was awarded the costs of the appeal fixed in the amount of $15,000 inclusive as had been agreed between the parties.

[2] However, the issue of the proper disposition of the costs of the original application had not been addressed by the parties so we invited written submissions on the appropriate disposition of those costs. We have now received and reviewed those submissions.

[3] The applicant submits that it should receive costs of the original application in the amount of $15,000 because of the importance of the issue to it. The respondent submits that it should receive the costs of the original application because of an offer to settle that it made and because the respondent says that the appellant acting improperly in joining the directors of the condominium corporation as individual respondents in the application. The respondent seeks costs in the amount of $22,551.59 on a substantial indemnity basis or, alternatively, in the amount of $15,109.70 on a partial indemnity basis.

[4] We accept that the issue raised was of importance to the applicant although we do not accept that the issue was novel. That said, we assume that reasonable people will not litigate issues that are not important so that is not a sufficient reason, by itself, to give costs to the applicant. While the applicant was successful on the technical legal point regarding the sufficiency of the status certificate, it was not successful on its real goal which was to essentially avoid having to contribute its proportionate share of the costs of the roof replacement.

[5] At the same time, we are sympathetic to the respondent’s point that there was no legitimate reason for naming the directors of the condominium corporation personally in the application and that that form of litigation tactic ought to be discouraged.

[6] On the issue of the settlement offer, we first note that this was not a formal settlement offer under Rule 49. Indeed, the letter is not expressly an offer to settle at all. It does suggest a possible route by which both parties could have walked away from the litigation but it did not expressly propose an overall resolution to the litigation. Nevertheless, we accept that it is a matter that is properly considered by us in disposing of the issue of costs.

[7] Taking all of these considerations into account, we are of the view that the appropriate result is that each party should bear its own costs of the original application. There was a technical victory for the applicant but the practical result favoured the respondent. It was very much a divided result. Consequently, we would make no order as to the costs of the original application. We also wish to make it clear that in reaching our decision on this costs issue, we are not to be taken as agreeing with the interpretation placed on our decision as set out in the appellant’s costs submissions.

KITELEY J.

NORDHEIMER J.

HARVISON YOUNG J.

DATE: April 15, 2014