Court File and Parties

Court File No.: 14-2103 (Simcoe)
Date: 2013-04-04
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Arthur Furtado Pereira, Applicant

AND:

Ryan Quatsch, Respondent

Before: The Honourable Mr. Justice D.A. Broad

Counsel:
Jamie Pereira and R. Paul Hosack - for the Applicant
Bhupinder Nagra - for the Respondent

COSTS ENDORSEMENT

[1] The parties have now delivered their written submissions on costs as directed in my Endorsement released February 21, 2013. The following is my disposition with respect to costs.

[2] The Applicant points to four considerations supporting a substantial indemnity costs disposition, namely:

(a) The Respondent misled the Land Registrar to obtain the Caution and did not provide accurate disclosure of the facts;

(b) The Respondent did not provide the Applicant with notice of registration of the Caution;

(c) The result obtained, being the result sought by the Applicant from the outset when he asked the Respondent to withdraw the Caution; and

(d) It was an overwhelming and clear case in favour of the Applicant.

[3] I would not give effect to the third and fourth grounds as a request made by an applicant or moving party prior to launching an application or motion is not unusual, nor does it constitute an Offer to Settle within the meaning of Rule 49.10. Similarly, the fact that the Applicant’s case may be regarded, in hindsight, as overwhelming and clear does not by itself justify an elevated costs award. Generally, there must be something in the conduct of the party against whom a costs order is sought to justify such an award, or there must have been an operative Offer to Settle under Rule 49.

[4] However, it is noted that the unilateral registration of a caution against the title to a property has the potential to inflict damage on an unsuspecting and innocent land-owner. It is for this reason that the Land Titles Act requires minimum disclosure of facts to satisfy the Registrar that there is a valid agreement of purchase and sale in relation to the property, and that timely service of the caution and notice of the particulars of the registration thereof is to be served on all persons having an interest in the land. These measures are necessary to afford those parties having an interest in the land, and who may be adversely affected by the registration, to take timely action to protect their interests.

[5] Under section 131 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, the court has discretion with respect to the costs of and incidental to a proceeding. Rule 57.01 sets forth the factors which the court may consider in the exercise of that discretion. Included in the factors are the principle of indemnity, as well as the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding under consideration.

[6] In my view, the Respondent in misrepresenting to the Registrar that there was an Agreement of Purchase and Sale in existence with a closing date of February 15, 2013, when there was no such subsisting agreement, and then, having unilaterally registered the Caution, in failing to serve it on the Applicant as required, could reasonably have expected to be ordered to indemnify the Applicant for the costs of an Application to remove the caution which would inevitably follow.

[7] The Applicant claims costs totalling $ 12,536.89 on a substantial indemnity basis, comprised of fees of $ 11,884.77, disbursements of $652.12 and applicable HST.

[8] Counsel for the Respondent suggests that the costs should be fixed at $5,000.00 inclusive of fees, and disbursements and HST, however, no issue appears to be taken with the time spent nor the hourly rates claimed by counsel for the Applicant.

[9] I do not find the time or the rates to be excessive in the circumstances and accordingly, I fix the costs of the Applicant, on a substantial indemnity basis, in the sum of $12,536.89, inclusive of fees, disbursements and HST.

D.A. Broad, J.

Date: April 4, 2013