CITATION: 898967 Ontario Limited v. Subryan Veersammy, 2015 ONSC 4908

DIVISIONAL COURT FILE NO.: 190/15

DATE: 20150717

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: 898967 ONTARIO LIMITED

(Plaintiff)

(Respondent in Appeal)

– and –

SUBRYAN VEERSAMMY

(Respondent)

(Appellant)

BEFORE: THEN J.

COUNSEL: D. Shiller and Jordan Epstein Carol Shirtliff-Hinds and Ben Hahn

for the Plaintiff for the Respondent

(Respondent in Appeal) (Appellant)

AMENDED COSTS ENDORSEMENT

[1] In accordance with the general rule costs should be awarded to the respondent tenant who was the successful party on the motion for a stay.

[2] The tenant submits that it is entitled to $19,522.14 or $13,522.15 on a substantial or partial indemnity basis respectively. The landlord has submitted a bill of costs which reflects an amount for substantial and partial indemnity as $5,943.50 and $3,810.00 respectively.

[3] I agree with the landlord’s submission that on the basis of the decisions of the Court of Appeal in Zesta and Boucher this court must be guided by what is fair and reasonable having regard to the factors outlined in Rule 57.01.

[4] In my view this is not a case for costs on a substantial indemnity basis. I am not persuaded there was a deliberate attempt to frustrate the proceedings by fraud or deception or to harm the opposite party. However, the failure by the landlord to immediately comply with the order of Whitaker J. is a factor which I take into account. As well the serious allegations of the landlord concerning the mental health of his daughter have added unnecessary complexity because of the deficiencies in the affidavit material submitted by the landlord and that too reflects on the assessment of costs.

[5] With respect to partial indemnity, I agree with the landlord’s submission that this motion for a stay was not overly complex subject to my observations above. I also agree with the landlord’s submission that the amounts allotted in the tenant’s bill of costs to reviewing the notice of motion and preparation of motion materials as well as to research and preparation of its factum are excessive and disproportionate to the amount in issue. Moreover, the extent of the involvement of two counsel on behalf of the tenant not only at the hearing stage of the motion but also in the review of motion materials and the preparation of the factum is in my view excessive.

[6] Accordingly, having regard to the guidance outlined in Zesta, supra, and Boucher, supra, as well as the factors in Rule 57 it is fair and reasonable to award costs to the respondent, tenant, in the amount of $7,500 all inclusive payable within 30 days.

THEN J.

DATE: July 17, 2015

CORRECTION NOTICE

Corrected decision: the Divisional Court file number of the original endorsement was corrected on August 4, 2015, and the description of the correction is appended:

Divisional Court File number “2989” was replaced by number “4908” on the first page of endorsement