Court File and Parties

Court File No.: CV-12-462802
Date: 2013-10-07
Superior Court of Justice - Ontario

Re: 2329131 Ontario Inc. v. Carlyle Development Corp.

Before: Swinton J.

Counsel:
Jonathan Kulathungam for the Plaintiffs/Moving Parties

Alvin M. Meisels for the Defendants/Responding Parties

Heard: by written submissions

Costs Endorsement

[1] The plaintiffs seek their costs of the motions for a certificate of pending litigation (“CPL”) and for partial summary judgment on a substantial indemnity basis. In the alternative, they seek costs on a partial indemnity basis up to March 8, 2013 and on a substantial indemnity basis thereafter.

[2] The defendants argue that there should be no costs of the ex parte motion for a CPL, given rule 57.03(3), which provides that on a motion made without notice, there shall be no costs unless the court orders otherwise. With respect to the motion for partial summary judgment, they argue that costs should be on a partial indemnity basis, and they take issue with the quantum sought by the plaintiffs.

[3] The plaintiffs reasonably brought the motion for a CPL in order to protect their claimed interest in the property. They subsequently used the affidavits filed for that motion for the motion for partial summary judgment, and they were successful on that motion. In the circumstances, they should be awarded costs for the CPL motion, as well as the motion for partial summary judgment, given their success on both motions.

[4] I see no basis to award costs on a substantial indemnity basis for the CPL motion, which was determined on September 7, 2012. The plaintiffs did not make their formal offer to settle until March 8, 2013.

[5] The offer to settle specified that the transaction for the purchase and sale of the property would close at the agreed price of $4,015,000.00 with the balance of the action being dismissed without costs if the offer was accepted within seven days. If not accepted within that period, costs would start to accrue on a partial indemnity basis.

[6] The offer of the plaintiffs, if accepted, would have resolved the whole action in a timely fashion. The plaintiffs obtained an order of specific performance requiring the defendants to sell them the property, although their claim for damages and an abatement of purchase price remain outstanding. In my view, the plaintiffs made reasonable efforts to resolve this litigation and to avoid having to bring the motion for partial summary judgment, and therefore, I would award costs on a substantial indemnity basis for the motion for partial summary judgment.

[7] In my view, $10,000 is a fair and reasonable amount to award for fees of the CPL motion, given the work involved in preparing the motion, including the two lengthy affidavits that were also used in the motion for partial summary judgment.

[8] With respect to the motion for partial summary judgment, I note that the hours of the defendants’ counsel were roughly comparable to those of the plaintiffs’ counsel (without considering the hours of the student at law). One of the considerations in awarding costs is the amount that the losing party would reasonably expect to pay in relation to this stage of the proceeding. One measure of that expectation is the amount charged by the losing party’s lawyer.

[9] Taking into account the importance of this litigation to the parties, the complexity, the plaintiffs’ offer to settle and the reasonable expectations of the defendants, I would reduce somewhat the amount sought by the plaintiffs for the motion for partial summary judgment. In my view, $45,000 for fees is a fair and reasonable amount for the motion for partial summary judgment.

[10] Accordingly, I order the defendants to pay costs of the CPL motion and the motion for partial summary judgment in the amount of $55,000 plus HST plus disbursements of $5,263.51, payable within 30 days.

Swinton J.

Released: October 7, 2013