Superior Court of Justice - Ontario

COURT FILE NO.: CV-13-473944
DATE: 20131106

RE: 2454 Bloor Street West Ltd. and 2150 Bloor Street West Ltd., Plaintiffs

– AND –

2107733 Ontario Inc. carrying on business as Moksha Yoga Studio and Don Christensen, Defendants

BEFORE: E.M. Morgan J.

COUNSEL:
Robert B. Cohen, for the Plaintiffs
Bruce G. McEachern, for the Defendants

HEARD: October 16, 2013 and written submissions on costs

COSTS ENDORSEMENT

[1] I released my endorsement in this motion on October 18, 2013 and requested written submissions on costs. Both counsel have now provided me with their submissions.

[2] Mr. Cohen, for the Plaintiffs, requests costs on a partial indemnity basis in the total amount of $48,921.13. That figure represents $39,325.00 in fees, $4,917.25 in HST on those fees, and $4,678.88 in disbursements.

[3] Mr. McEachern, for the Defendants, concedes that the Plaintiffs deserve costs as the successful party on the injunction, which was the main issue in the motion. However, he submits that the Defendants were also partially successful in that I ordered that the Plaintiffs pay the Defendants $112,500 on account of payments relating to the Surrender of Lease and the Replacement Lease signed by the parties.

[4] Mr. McEachern also takes issue with some of the fees and disbursements contained in Mr. Cohen’s Bill of Costs. He indicates that his own Bill of Costs would have come to roughly $20,000 less than Mr. Cohen’s Bill.

[5] I have reviewed the Bill of Costs submitted by Mr. Cohen and am satisfied that it is reasonable under the circumstances. While it is significantly higher than his opponent’s estimated costs, I am hesitant to argue with success. It appears to me that the time and disbursements incurred by Mr. Cohen and the team that worked with him on this matter were well spent and paid off in achieving the injunction that his clients sought to achieve. I would not reduce his partial indemnity request on account of any particular hours or disbursements that he seeks to recover.

[6] That said, Mr. McEachern does have a point about the divided success on the motion. While the Plaintiffs state that they did not object to the payment of the $112,500 to the Defendants, the fact is that they did not pay it and the Defendants needed it to be included in the ruling on the motion in order to reconfirm their entitlement to it. I would therefore agree with Mr. McEachern that the fee portion of the costs to the Plaintiffs, with the corresponding HST, should be reduced in half. The Plaintiffs should have full recovery of their disbursements, since these are out-of-pocket expenses that would have been incurred in any event.

[7] The Plaintiffs’ claim for fees is reduced to $19,662.50. HST on that amount comes to $2,556.13. To that should be added the Plaintiffs’ disbursements in the amount of $4,678.88. The Defendants shall pay the Plaintiffs costs in the all-inclusive amount of $26,897.51.

[8] If as of the date of this costs endorsement the $112,500 that I ordered paid has already been paid to the Defendants – and by “already paid” I mean that the funds have actually been delivered to the Defendants, not paid by the Plaintiffs to the Plaintiffs’ own counsel in trust or otherwise withheld from the Defendants pending the outcome of some ongoing dispute – then the Plaintiffs shall pay the Defendants their costs of $26,897.51 within 30 days of the date of this costs endorsement.

[9] On the other hand, if on the date of this costs endorsement the Plaintiffs have not already paid the Defendants the $112,500 that I ordered be paid, then the Plaintiffs may set off the $26,897.51 in costs against the $112,500 that they owe the Defendants. That would leave a balance payable by the Plaintiffs to the Defendants of $85,602.49. As for the timing of that payment, I will reiterate here what I said at paragraph 45 of my October 18, 2013 endorsement: “Upon the Tenant’s vacating of the Premises, the Landlord is to pay the Tenant $112,500.”

[10] Both parties included with their costs submissions some additional points of argument relating to an ongoing dispute between the parties and events that have occurred subsequent to my October 18, 2013 endorsement. I have not addressed those points here, as it appears to me that they are more properly the subject of a separate motion. The parties should exchange materials and schedule any new motion with the Motions Office in the usual way.

Morgan J.

Date: November 6, 2013