ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-12-37464SR
DATE: 2013-12-23
B E T W E E N:
Homelife Professional Realty Inc., Brokerage and Tino Goritsas
Sharoon Gill, for the Plaintiffs
Plaintiffs
- and -
Paramjit Moondi and Bhupinder Moondi
Amandeep Walia, for the Defendants
Defendants
JUDGMENT ON COSTS
The Honourable Mr. Justice H. S. Arrell
Introduction:
[1] The plaintiff Homelife is a real estate brokerage firm. The plaintiff Goritsas is a real estate agent with Homelife.
[2] The defendants were the owners of a home at 247 Chambers Drive in Ancaster. I found, after a summary judgment motion, that the defendants were responsible to the plaintiffs for their commission when the defendants sold their home, shortly after cancelling the listing agreement they had with the plaintiffs, to a couple who had seen the home during the listing period.
[3] I indicated to the parties that they could make written submissions on costs if they were unable to agree. I have now received such submissions from both parties.
Analysis:
[4] I had no hesitation in finding for the plaintiffs in the amount of just under $30,000.00 being the commission owed under the listing agreement signed by the parties. I did not find in their favour on their claim for punitive damages.
[5] The plaintiffs were completely successful in the main issue of their claim and seek substantial indemnity costs which they state are $19,570.70 inclusive of taxes and disbursements. These costs encompass some 69 hours by various members of the firm. The vast majority of that time by counsel with one years’ experience who charges $200.00 per hour.
[6] The defendants argue that the plaintiffs were only partially successful as no amount was awarded for punitive damages. They also put forth the novel argument that the plaintiffs are only owed 2.5% for their commission as the other agent settled with his client. Such an argument was never presented at the summary judgment motion and there is no evidence before me to substantiate that a lesser amount is owed. I find this argument to be without merit.
[7] The plaintiff urges me to find that the defendant acted in bad faith or unreasonably and should be sanctioned in costs. I disagree.
[8] The defendant’s position was not accepted by me and indeed I found that the evidence of the defendants lacked credibility. That occurs in many cases and does necessarily mean bad faith as the term has been defined in the case law. I am also not persuaded that the defendant acted unreasonably in seeking a hearing, even though unsuccessful.
[9] This was a straight-forward and uncomplicated matter. In determining quantum the court is to consider the various factors set out in Rule 57.01 of the Rules of Civil Procedure, as well as s. 131 of the Courts of Justice Act. I have considered those factors.
[10] The court must also consider proportionality when exercising its discretion. The court must also take into account the amount of costs the defendants could reasonably expect to pay should they be unsuccessful as they were.
[11] There is no evidence before me that either party filed any offer pursuant to the rules that would attract cost consequences.
[12] Taking into account the principal of proportionality, I find that almost 42 hours to prepare pleadings, attend what was likely a half day discovery, and prepare the motion material to be somewhat excessive, as is 15 hours to prepare for and argue the actual motion, which took about an hour.
[13] The Court of Appeal has stated as follows:
“…This court, following the principle established by the Supreme Court, has repeatedly said that elevated costs are warranted in only two circumstances. The first involves the operation of an offer to settle under rule 49.10, where substantial indemnity costs are explicitly authorized. The second is where the losing party has engaged in behavior worthy of sanction.”
Davies v. Clarington (Municipality) 2009 ONCA 722, [2009] O.J. No. 4236 (O.C.A.) para. 28
[14] I have already concluded that the conduct of the defendants is not worthy of sanction.
[15] I have considered the principles in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) and find that costs to the plaintiffs on a partial indemnity basis, in the amount of $12,500.00 inclusive of taxes and disbursements, in all the circumstances, is fair and reasonable to both sides and within their respective expectations.
Arrell J.
Released: December 23, 2013
COURT FILE NO.: CV-12-37464SR
DATE: 2013-12-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Homelife Professional Realty Inc., Brokerage and Tino Goritsas
Plaintiffs
- and –
Paramjit Moondi and Bhupinder Moondi
Defendants
JUDGMENT ON COSTS
Arrell J.
HSA:mw
Released: December 23, 2013