SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: CV-09-960
Date: 2012-05-15

RE: AYA KITCHENS AND BATH LTD., Plaintiff

AND:
BLUE FOREST HOMES INC. and BLUE FOREST HOMES OF BADEN INC., Defendants

BEFORE: The Honourable Madam Justice J. A. Milanetti

COUNSEL:
Mr. David Brand, for the Plaintiff,

Mr. Justin Heimpel, for the Defendants

COSTS ENDORSEMENT

[ 1 ] The plaintiff asked for costs of $10,000.00 on a partial indemnity basis saying that costs should follow the result and they were successful. The plaintiffs provided neither a Bill of Costs nor a Costs Outline as is required by the Rules.

[ 2 ] My decision of January 13 th , 2012 awarded the plaintiffs $3,801.79. Prejudgment interest should have been ordered payable on said amount, but only until the June 18 th , 2008 offer to settle of the defendant. As such, the plaintiffs did receive a judgment; albeit a very small one. I note that the plaintiff’s claim was originally for $61,827.09. They continued through much of the trial to say this was the appropriate sum; (despite an admission at examination for discovery of their witness that the claim should have properly been limited to $46,207.49; an amount that would place their action more properly within the simplified procedure). Despite the discovery admission; (ultimately accepted by them midway through trial), and the prodding of defence counsel, the plaintiff continued to pursue the inflated amount. Not only was the $61,827.09 an unrealistic number, there was no evidence called to justify same, and I ultimately made an award that fell at the low end of the Small Claims Court jurisdiction. The plaintiff could not possibly be recipient of costs as such would ignore the consequences set out in Rules 57 and 76 entirely.

[ 3 ] The poor legal behaviour of the plaintiff is attenuated by their failure to admit any of the facts or documents set out in the defence formal Request to Admit dated October 28 th , 2011. Theirs of November 15 th , 2011 was a blanket denial. This too is most relevant to the costs discussion (see Rule 59 in this regard). The purpose of the request procedure is to save the parties (and the court) time and money. It was effectively ignored.

[ 4 ] Over and above, the defence served a formal offer to settle on June the 18 th , 2008, more than three years before trial. That offer was for payment to Aya of $10,000.00. It was never withdrawn. Rule 49 indicates that:

49.10(2) Where an offer to settle,

(a) is made by a defendant at least seven days before the commencement of the hearing;

(b) is not withdrawn and does not expire before the commencement of the hearing; and

(c) is not accepted by the plaintiff,

and the plaintiff obtains a judgment as favourable as or less favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer was served and the defendant is entitled to partial indemnity costs from that date, unless the court orders otherwise .

[ 5 ] Based on:

(a) the failure of the plaintiff to come to grips with the true value of their claim;

(b) to reduce the time spent in the litigation and at trial;

(c) their complete failure to provide any justification for the costs they seek;

I will award no costs up to the date of the defence offer.

[ 6 ] That being said, I will not accede to the defence request for enhanced costs to them from the date of their offer forward.

[ 7 ] The defendant shall be entitled to their partial indemnity fees of $15,000.00 plus HST plus disbursements of $1,806.46. I have reduced their fees to reflect additional lawyer time aside from that of Mr. Murdoch and Mr. Heimpel, and to reflect the results.

[ 8 ] I further order that the amount owing to Aya shall be set off against the costs awarded to the defendant this day (understanding that the prejudgment interest shall be included in the judgment amount from the date the claim was issued to the date of defence offer).

Released: May 15, 2012

MILANETTI J.