SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 1645524 Ontario Limited, formerly known as 2026242 Ontario Ltd.

v.

Investpro Realty and Appraisal Ltd., Roger Brugess and Dino Nicosia

BEFORE: MASTER R.A. MUIR

COUNSEL: Kirkor A. Apel for the plaintiff Bart Sarsh for the defendants Investpro Realty and Appraisal Ltd. and Dino Nicosia Craig Mills for the defendant Roger Brugess

REASONS FOR DECISION - COSTS

[1] On January 29, 2013 I heard two motions in connection with this action. The defendants brought separate motions for an order requiring the plaintiff to post security for costs pursuant to Rule 56.01(1)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”).

[2] On February 4, 2013 I released my reasons for decision. I ordered that the plaintiff post security in the amount of $36,000.00 for each set of moving defendants, payable in stages. I also requested that the parties attempt to resolve the issue of costs. It appears that the parties have been unable to do so as I have now received the parties’ written costs submissions.

[3] The defendant Roger Brugess seeks his costs in the amount of $11,106.21 on a partial indemnity basis. The defendants Investpro Realty and Appraisal Ltd. and Dino Nicosia seek $16,045.51, also on a partial indemnity basis. The plaintiff argues that the costs requested by the moving parties are excessive for motions of this nature. The plaintiff suggests that costs to each set of defendants in the amount of $4,000.00 plus HST would be fair and reasonable in the circumstances.

[4] The court’s general authority to award costs as between parties to litigation is found in section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which provides that costs are in the discretion of the court. Rule 57.01(1) sets out a non-exhaustive list of factors the court is to consider when awarding costs. Rule 1.04(1.1) is also applicable. It requires the court in applying the Rules of Civil Procedure to make orders that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding. In general terms, the overall objective for the court is to fix an amount that is fair and reasonable for the unsuccessful party who generally must pay the costs of the successful party. See Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 (C.A.) at paragraph 4. In Clarington (Municipality) v. Blue Circle Canada Inc., 2009 ONCA 722 the Court of Appeal stated as follows at paragraph 52:

Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.

[5] These are the principles I have considered and applied in determining the appropriate costs orders for these motions.

[6] I have reviewed the costs outlines and submissions of the parties. The defendants have been successful on these motions and are entitled to an award of costs. However, I note that the defendants have not been entirely successful. They did not obtain an order for security for costs for the full amounts they were seeking and I made an order that the security be posted in stages.

[7] The defendants argue that this motion was unduly complicated by the conduct of the plaintiff. It is true that the plaintiff requested a number of adjournments and failed to deliver some of its material in a timely manner. However, I did make an earlier costs order to compensate the defendants for some of the plaintiff’s conduct in this regard. As well, it is my view that not all of the delays encountered with these motions were the responsibility of the plaintiff.

[8] I also agree with the plaintiff that the costs requested by the defendants are somewhat excessive for motions of this nature. Although these motions were important to the defendants given the plaintiff’s lack of assets, the law and the facts were not complicated. In my view, the issues were quite straightforward. It is also my view that any award of costs on a security for costs motion should be proportional to the amount of security for costs ordered to be posted for the action as a whole. In this case, that amount was $36,000.00 for each set of defendants.

[9] In view of these factors and applying the principles set out above, it is my view that it is fair and reasonable that the plaintiff pay the defendants’ costs of these motions in the amount of $7,000.00 for each set of moving defendants. These amounts are inclusive of HST and disbursements and shall be paid within 30 days.

March 11, 2013

Master R.A. Muir