SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-10-400298

DATE: 20130710

RE: Rosedale Kitchens Inc., Plaintiff

AND:

2114281 Ontario Inc. and Merlin Restoration Ltd. and Banana Moon Inc., Defendants

BEFORE: Pollak J.

COUNSEL:
Jesse Rosenberg, for the Plaintiff

Glenn Grenier, for the Defendant Banana Moon Inc.

HEARD: March 7, 2013, May 22, 2013 and June 3, 2013

ENDORSEMENT

[1] I have considered the costs submissions by both parties. The successful party on the one issue in dispute between the parties was Rosedale Kitchens Inc. (“Rosedale”). Rosedale submits it is entitled to be awarded costs of “$17,300 in costs fixed inclusive of fees, disbursements and HST, and calculated pursuant to its Rule 49 offer, on a partial indemnity scale from the time of service of the notice of motion (June 19, 2012) to the dates of its offer (August 28, 2012); and, on a substantial indemnity scale from the date of its offer (August 28, 2012) forward”.

[2] Banana Moon Inc. (“Banana Moon”) submits that it is entitled to costs to be awarded as Rosedale conceded that an amendment had to be made to the holdback amount referred to in the report of Master Albert, which has the effect of reducing Rosedale’s Construction Lien priority from $30,917.70 to $28,415.70. As this concession was made prior to the hearing of this motion, it was not necessary for the Court to consider this issue.

[3] As well, in its costs submission, Rosedale requests that the Court specifically grant:

“judgment confirming the Report of Master Albert dated June 5, 2012 by this Honourable Court’s authority pursuant to Rule 54.09(5) of the Rules of Civil Procedure; such Report amended only to the extent of the net accounting affected by adjusting at its Paragraph 2 and Column 2 of Schedule E the holdback amount from $5,915.70 to $3,415.70; and, otherwise dismissing the mortgagee’s motion and awarding Rosedale its costs payable by the mortgagee out of the funds paid into court to the Accountant of the Superior Court of Justice for Ontario held in Account 514464, with interest from the date of the Report.”

[4] Banana Moon has not made any submissions in its costs submissions in this regard. The motion before the Court was brought by Banana Moon requesting the Court to set aside the June 5, 2012 Report of Master Albert. There was no cross-motion brought by Rosedale seeking the above-noted relief. It is anticipated that the parties will be able to resolve this issue on consent. Failing that, Rosedale must take the appropriate steps to obtain the desired Court Order.

[5] With respect to the question of costs, I agree with the submissions of Rosedale that on the basis of its Rule 49 Offer, it is entitled to partial indemnity costs to the date of its offer and substantial indemnity costs thereafter. I do not accept the submissions of Banana Moon to order otherwise. Banana Moon is not, in my view, entitled to costs because Rosedale conceded the minor point that the amount of the holdback should be decreased.

[6] The issue then becomes how to quantify the reasonable amount of costs; firstly, on a partial indemnity basis and then on a substantial indemnity basis, that should be awarded to Rosedale. In doing so, I am considering the factors set out in the Rules and in the Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) case. The reasonable expectation of the parties is a relevant factor. Banana Moon submitted a Bill of Costs on a partial indemnity basis of $21,307.29 after the first court appearance. Banana Moon did not submit any revised Bill of Costs for the inclusion of subsequent court appearances.

[7] Banana Moon submits that there are “excesses” in Rosedale’s Bill of Costs. Further, it relies on Rosedale’s submission, in court, that if Banana Moon were to be successful that the amount of $8,500 would be a fair amount to award on a partial indemnity basis. It submits that such would have been the reasonable expectation of Rosedale of costs to be awarded if it were successful. From that amount, Banana Moon submits amounts must be deducted for Rosedale’s “exaggerated” fees claimed for the court attendances.

[8] On the other hand, as mentioned above, Banana Moon submitted its Bill of Costs on a partial indemnity basis for the amount of $21,307.29. It can also be argued that such would be the amount that Banana Moon would reasonably have expected to pay if it were not successful on this motion. In taking all of the factors I have referred to into consideration, I agree that an appropriate, fair and reasonable amount to award to Rosedale in costs is $17,300. On this basis I award costs of $17,300 to Rosedale to be paid by Banana Moon, inclusive of disbursements and all applicable taxes.

Pollak J.

Date: July 10, 2013