SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: C-327-12
DATE: 2012-11-01

RE: WATERLOO NORTH CONDOMINIUM CORPORATION NO. 37, Applicant

AND:

JOSEPH SILASCHI, Respondent

BEFORE: The Honourable Mr. Justice D.A. BROAD

COUNSEL:
Nelson Amaral - for the Applicant
Respondent - self-represented

COSTS E N D O R S E M E N T

[ 1 ] In my Endorsement granting the Applicant’s application I directed that the parties may make written submissions with respect to costs. The parties’ submissions have now been received and the following is my disposition with respect to costs.

[ 2 ] Counsel for Applicant seeks full indemnity costs totalling the sum of $11,093.98, comprised of $9,247.50 in respect of fees, disbursements of $644.30 and HST of $1,202.18. The fee component is based upon an actual hourly rate for Mr. Amaral of $225.00, and a total time involvement of 41.1 hours.

[ 3 ] Subsection 134(3) of the Condominium Act, 1998, S.O. 1998, c. 19, provides as follows with respect to the powers of the Court on an application to enforce compliance with the Act, the Declaration or by-laws of a condominium corporation:

(3) On an application, the court may, subject to subsection (4),

(a) grant the order applied for;

(b) require the persons named in the order to pay,

(i) the damages incurred by the applicant as a result of the acts of non-compliance, and

(ii) the costs incurred by the applicant in obtaining the order; or

(c) grant such other relief as is fair and equitable in the circumstances. 1998, c. 19, s. 134 (3).

[ 4 ] In my view subsection (3) does not require the Court to assess the costs of an application of this nature on a full indemnity basis. As indicated by the Court of Appeal in the case of Metropolitan Toronto Condominium Corp. No. 1385 v Skyline Executive Properties Inc. 2005 CarswellOnt 1576, the difference between the amount of costs assessed by the court on the application and the actual costs incurred by a successful condominium corporation in obtaining the order is a matter that is addressed by subsection 134(5) of the Act.

[ 5 ] As emphasized by the Court of Appeal in the case of Boucher v. Public Accountants Council (Ontario) 2004, 71 O.R. (3d) 291, at para. 26, the overriding consideration on the fixing or assessment of costs as between parties to litigation is what is fair and reasonable for the unsuccessful party to pay, rather than an amount fixed by the actual costs incurred by the successful party.

[ 6 ] The guidelines published by the Rules Committee suggest a maximum partial indemnity rate for lawyers of less than 10 years experience of $225.00. In my view this maximum rate should be reserved for the most complex matters. Moreover, the lawyer’s actual rate should not be utilized as the partial indemnity rate. In my view a partial indemnity rate of $150.00 would be appropriate in this case.

[ 7 ] On a matter of this nature, given its moderate complexity, an unsuccessful party should expect to be responsible for costs of the successful party reflecting a time involvement not exceeding 30 hours. This would result in a fee component of $4,500.00. The disbursements claimed appear to be reasonable and in accordance with the applicable tariff.

[ 8 ] I therefore fix the costs of the Applicant in the sum of $5,729.30 inclusive of fees, disbursements and HST.

[ 9 ] The Applicant seeks an Order requiring the Respondent to pay the expenses which will be incurred in carrying out the remedial work contemplated by the Order. Subsection 134(3) (b)(i) speaks of “the damages incurred by the applicant as a result of the acts of non-compliance” (underlining added). I am not satisfied that I have jurisdiction under this section to award damages for expenses which have not yet been incurred. I would therefore decline to make an order in this respect.

D. A. Broad J.

DATE: September 25, 2012