Court File and Parties

COURT FILE NO.: CV-21-30144 DATE: 20230303 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Obolus Ltd. and Composite Investments Ltd. Applicants – and – International Seniors Community Care Inc. Respondent

Counsel: Myron Shulgan, for the Applicants Dimitrios Mylonopoulus, for the Respondent

HEARD: In Writing

Ruling on Costs

CARROCCIA J.

[1] The applicants commenced an Application seeking an order that the Agreement of Purchase and Sale (APS) entered into by the applicants and the respondent on March 14, 2021 was validly terminated by the applicants in accordance with the terms of that agreement, and that the respondent had no interest in the lands described in the APS. They were successful on the summary judgment motion, and the order was granted, see Obolus Ltd et al v. International Seniors Community Care Inc. 2023 ONSC 90.

[2] The parties were unable to agree on the issue of costs and provided submissions in writing. This is my ruling on the costs of the Application.

The Position of the Parties

[3] The applicants, who were the successful party, are seeking costs on a partial indemnity basis of $37, 052.24 inclusive of disbursements and HST. They argue that the proceeding was complex, that the issues were important to both the applicants and the respondent, and that ultimately the entire matter was resolved by the summary judgment motion.

[4] The respondents submit that by virtue of the court’s ruling that the matter involved an issue of contractual interpretation, and was not complex, the applicants cannot now argue that the matter was complex. Further, the respondents submit that the costs sought by the applicants are not in line with the reasonable expectations of an unsuccessful party, and that the costs sought are unreasonably high. The respondent submits that an order for costs should not exceed $15,000 all inclusive.

The Legal Principles

[5] Section 131 of the Courts of Justice Act, R.S.O. 1990 c. C. 43, provides that a judge has discretion, subject to the provisions of an Act or the Rules of the court, to determine the extent, if any, of costs to be paid by a party.

[6] Furthermore, r. 57.01 of the Rules of Civil Procedure R.R.O. 1990, Reg. 194 sets out the general principles that a court may consider in determining an award of costs. In addition to any result in the proceeding and any offer to settle, the court may consider the experience of the lawyer for the party entitled to costs as well as time spent and rates charged, the complexity of the proceeding, the importance of the issues, and the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceedings, among other factors.

[7] In Boucher v. Public Accountants Council for the Province of Ontario, [2004] O.J. No. 2634, the Ontario Court of Appeal said that the fixing of costs is not a mechanical exercise that consists of a calculation of time spent multiplied by hourly rates. The court stated at para. 26:

Overall, as this court has said, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.

[8] Reasonableness and proportionality are the touchstone considerations in making an award of costs: see Beaver v. Hill, 2018 ONCA 840, at para. 12.

Analysis

[9] The applicants were the successful party and are entitled to an order for costs. The only issue to now be determined is the quantum. I have considered the factors outlined in r. 57.01 of the Rules including the time spent by counsel, the rate charged, the complexity of the matter and the importance of the issues to the parties. The court is mindful that an order of costs must be reasonable and proportionate.

[10] The applicants are seeking costs for the matter before this court as well as the earlier motion heard by Carey J. to vacate the certificate of pending litigation. The time spent by all lawyers and law clerks for the applicants totaled 96.5 hours at rates ranging from $125 to $700 per hour. The respondent describes the order for costs sought as “extremely high” and suggests that it is not in line with the reasonable expectations of the parties.

[11] Neither party suggests that the other acted in a way that unnecessarily delayed the proceedings, and both agree that the issues determined in this proceeding were important to the parties. The parties conducted cross-examinations on affidavits and filed Application Records, case briefs and other material for use on this application. The respondent submitted a bill of costs for reference which indicates that their counsel spent a total of 47.1 hours on this matter.

[12] I adopt the reasons expressed by the Ontario Court of Appeal in Boucher as outlined above. An order for costs should be fixed in an amount that would be fair and reasonable for the unsuccessful party to pay given the totality of the circumstances.

[13] In this case there will be an order that the respondent pay to the applicant the sum of $25,000 in costs inclusive of disbursements and HST.

Original Signed by “Justice M.V. Carroccia” Maria V. Carroccia Justice Released: March 3, 2023