ONTARIO

SUPERIOR COURT OF JUSTICE

ST. CATHARINES COURT FILE NO.: 50763/08
DATE: 2012-11-13

B E T W E E N:

Elizabeth Heger and Heinrich Heger

Harvey A. Swartz, for the Plaintiffs

Plaintiffs

• and -

Michael Varajao, Albert Varajao, Frank Fiorilli, 2141894 Ontario Inc., and 1655608 Ontario Limited

Scott Rosen, for the Defendants Michael Varajao, Albert Varajao and 2141894 Ontario Inc. Michael Fiorilli, for 1655608 Ontario Limited

Defendants

COSTS JUDGMENT

LOFCHIK J.

1I have been requested by counsel for the defendants Michael Varajao, Albert Varajao, and 2141894 Ontario Inc. to fix costs in this matter. The action was in respect of the issue of what if any leasehold interest the plaintiffs have in a certain property located in Welland, Ontario and whether any of the defendants were required under a tenancy agreement with the plaintiffs to make improvements to the premises. The defendants counterclaimed for rent with respect to the property which was being occupied by the plaintiffs.

2In my judgment released September 14 th , 2012 I dismissed the plaintiff’s claim and granted judgment in favour of the defendants on their counterclaim in the amount of $120,000.00 together with prejudgment interest. In said judgment I ordered that the defendants were entitled to their costs.

3Counsel for the above noted defendants has submitted a claim for costs on a partial indemnity basis in the amount of $35,657.30 for fees plus $4,635.45 H.S.T. for a total of $40,292.75 for fees inclusive of tax plus disbursements of $3,214.29 inclusive of tax.

4The claim for costs covers pleading, examinations for discovery, a motion to set aside a default judgment, a motion for summary judgment and costs of a five day trial.

5The following factors referred to in Rule 57.01(1) are relevant to the fixing of costs in this case:

Amount Claimed and the Amount Recovered in the Proceeding

6The plaintiffs claimed the sum of $52,000.00 which they said was the cost of required renovations to the property which the plaintiffs agreed to carry out so that the plaintiffs could operate a horse boarding operation together in excess of $100,000.00 loss of income. The plaintiffs have been entirely unsuccessful in recovering any amount.

7The defendants counterclaimed for arrears of rent and were granted judgment in the amount of $120,000.00 plus interest.

Complexity of the Proceeding

8The legal issues in the matter were of moderate complexity. The action was essentially a fact driven breach of contract action.

Importance of Issues

9The issues in the action were of importance only to the parties the same as they would be in any breach of contract action.

The Amount of Costs Which An Unsuccessful Party Could Reasonably Expect to Pay

10In deciding what is fair and reasonable, the expectation of the parties concerning the quantum of costs is a relevant factor. It is not the expectation of either the successful party as to whether all of the time and effort put into the case should be recoverable in costs nor the view of what is reasonable of the unsuccessful party that counts, but rather an objective assessment of what is a fair and reasonable amount that should be paid by the unsuccessful party to the successful party. A costs award should reflect more of what the court views as a fair and reasonable amount that should be paid by the unsuccessful party rather than any exact measure of actual costs to the successful litigants. A motions judge is not equipped nor expected to conduct a line by line assessment but should attempt to achieve procedural and substantive justice between the parties.

Zesta Engineering Ltd. v. Cloutier , (2002) 25577 (ONCA)

Boucher v. Public Accountants Council for Province of Ontario , (2004) 14579 (ONCA)

Marano v. Bank of Montreal (1998), 1998 5633 (ON CA) , 41 OR (3d) 222 (C.A.)

11When more than one counsel is involved in the research and preparation in a matter, it is not unreasonable to assume that there is some duplication of effort and that time spent with respect to the two counsel consulting with each other should not be recoverable from the losing party.

12There are some fees claimed in respect of research regarding attornment of rent and drafting a notice of attornment which do not appear to me to be relevant to this action. I am of the view that the costs of the motion to set aside default should be substantially less than the amount being claimed by defendant’s counsel.

13Defendant’s counsel have claimed in excess of $25,000.00 in fees with respect to a motion for possession of property which was unsuccessful. Although it would appear that Justice Quinn allowed costs in the cause in connection with the motion, I am of the view that the fees claimed with respect to this motion should be substantially reduced.

14Having regard to all the relevant factors and in light of the above comments, I find that an appropriate amount for fees to be paid to defence counsel is $30,000.00 plus $3,900.00 for H.S.T. for a total of $33,900.00 for fees.

15I find that the amount claimed for disbursements in the amount $214.10 for hotel, $145.46 for travel and $112.00 for “searches” are not recoverable so that the disbursements should be reduced by the amount of $471.56 plus $61.30 H.S.T. for a total of $532.86 resulting in allowable disbursements of $2,681.43.

16In the result I order that the defendants are entitled to recover from the plaintiffs’ costs for fees in the amount of $33,900.00 plus disbursements of $2,681.43 inclusive of tax for a total of $36,581.43.

LOFCHIK J.

Released: November 13, 2012

ST. CATHARINES COURT FILE NO.: 50763/08
DATE: 2012-11-13

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Elizabeth Heger and Heinrich Heger Plaintiffs - and – Michael Varajao, Albert Varajao, Frank Fiorilli, 2141894 Ontario Inc., and 1655608 Ontario Limited Defendants COSTS JUDGMENT LOFCHIK J. TRL:mg