ONTARIO

SUPERIOR COURT OF JUSTICE

Corporation No. 919, 2013 ONSC 7833

COURT FILE NO: CV-13-476094
DATE: 20131218

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dhillon Group Investments Ltd.

Applicant

v.

Peel Standard Condominium Corporation No. 919, 2226828 Ontario Inc. and Rajiv Kumar Johri

Respondents

BEFORE: The Honourable Mr. Justice Stephen Firestone

COUNSEL:
Jonathan H. Fine,
for the Applicant

Carol Dirks,
for the Respondent Peel Standard Condominium No. 919

Derrick M. Fulton,
for the Respondents 2226828 Ontario Inc. and Rajiv Kumar Johri

HEARD: Written Submissions

COSTS ENDORSEMENT

FIRESTONE J.:

[1] On September 16, 2013 by way of written reasons I granted the moving parties application having found that:

(a) Rajiv Kumar Johri (“Johri”) and 2226828 Ontario Inc’s (“222s”) use of its unit constituted use as an “Accounting Office” thereby contravening Article 4.1(g) of Peel Standard Condominium Corporation’s declaration, and

(b) the disputed portion of the declaration does conflict with the provisions of the Condominium Act, 1998 and is therefore unenforceable.

[2] In my written reasons I indicated that if the parties could not agree on costs, written submissions could be submitted.

[3] The applicant, Dhillon Group Investments Ltd. (“Dhillon”), submits that it is entitled to its costs from the respondents, jointly and severally, on a full indemnity basis in the sum of $13,784.43.

[4] It further argues that the respondents, Johri and 222, should be required to reimburse Peel Standard Condominium Corporation No. 919 (“PSCC 919”) for the applicant’s share of any costs that PSCC 919 is required to pay. If not, the applicant will, in effect, be paying its own costs.

[5] The applicant argues that it was wholly successful in this matter and that the positions taken by the respondents were wrong and rendered this application necessary.

[6] They submit that a unit owner who seeks compliance from another unit owner or from the Condominium Corporation deserves the same protection granted pursuant to section 134(5) of the Condominium Act, 1998 which in essence shifts the financial burden from the innocent to the wrong-doer.

[7] The respondent, PSCC 919, argues that the facts surrounding the commencement of this application involved some very unique circumstances which include the fact that the president of the applicant and the principle of 222 were both on the Board of Directors of PSCC 919. As a result, PSCC was unable to obtain instructions from its Board of Directors. They knew that Dhillon was aware of this.

[8] They argue that PSCC 919 offered to facilitate mediation between Dhillon and 222. This was rejected by Dhillon who instead chose to proceed with an application in court and the added expense associated with it.

[9] In addition, the principle of Dhillon and 222 did not resign from the Board of Directors of PSCC 919 until after the application materials had been filed and a hearing date set. Under the circumstances they submit that PSCC 919 should not be with penalized cost sanctions.

[10] The issues in the application relating to PSCC 919 were novel and at all times they acted in good faith in compliance with the wording contained in the declaration established by the developer.

[11] They argue that the offending owner, 222, should be required to bear the costs of the application as it was their conduct that created the dispute.

[12] It is argued that if PSCC 919’s declaration did not contain the disputed portion in Article 4.1(g) and PSCC 919 had been in a position to enforce the restrictive covenants in its declaration, all costs incurred by PSCC 919 would have been sought to be recovered from 222. As a result, they argue the cost award should be no different in this case.

[13] Finally, they argue that costs if awarded should be on a partial indemnity basis. There is no basis either pursuant to Section 134(5) of the Condominium Act, 1998 or the declaration to deal with costs on any other basis.

[14] The respondents, Johri and 222, argue that each party to the application should bear their own costs. They state that because the owner of the applicant was not a party, the respondent Johri, as well, should not have been added

[15] They submit that the issues in this application are novel and that due to the wording of the declaration it was never clear whether the respondents were, in fact, in violation of same. They state that had the “Exclusive Use” portion of declaration been drafted more clearly they would not have been faced with the apparent uncertainty.

[16] The argue that they were misled by the declaration believing, as a result of its terms, which were not clear or the alternative, as a result of the absence of relevant information in it, that the use to which the unit was being put was permitted.

[17] They state that they are entitled to damages pursuant to section 133 of the Condominium Act and that they are entitled to damages resulting from the omission of a material statement or material information that the declarant is required to provide. They request that any damages payable by them be set off against costs.

[18] They also highlight the fact that the applicant refused mediation which was offered by PSCC 919, the cost of which would not exceed $3,000.00. The failure of the applicant to proceed to mediation has prejudiced them and led to additional and unnecessary costs.

[19] Costs are within the discretion of the Court: Courts of Justice Act, s. 131(1). The Court has broad discretion when determining the issue of costs. Rule 57.01 (1) sets out the factors the Court may consider when determining costs.

[20] A successful party is entitled to costs in the absence of a very good reason(s) to not order them. Schreiber v. Mulroney, 2007 31754 (ON SC), [2007] O.J. No. 3191 (Sup. Ct.) at para. 2.

[21] The overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay, in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant. Boucher v. Public Accountants Counsel for Ontario, [2004] 14579 (Ont.C.A.).

[22] I have considered the helpful and well written submissions of counsel as well as the relevant legal principles.

[23] Given the facts of this case as well as the complexity of the matter, the results achieved, and experience of counsel, I order that partial indemnity costs of this application in the all-inclusive sum of $4,900.00 be paid by the respondents, 222 and Johri (jointly and severally), to the applicant, Dhillon, within 60 days.

FIRESTONE, J.

DATE: December 18, 2013