COURT FILE AND PARTIES

COURT FILE NO.: CV-12-446561

DATE: 20140523

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Pickering Square Inc., Plaintiff

AND:

Trillium College Inc., Defendant

BEFORE: Graeme Mew J.

COUNSEL:
Alan B. Dryer, for the plaintiff

Courtney V. Raphael, for the defendant

HEARD: In Writing

ENDORSEMENT on INTEREST AND costs

[1] The defendant’s motion for summary judgment based on the limitation defences pleaded by the defendant was partially successful.

[2] The defendant asserts that it should be awarded 70% of the partial indemnity costs of the motion. The amount claimed is $9,421.97.

[3] The defendant’s request includes costs incurred in connection with a request in the relief it sought on the motion for leave to amend its statement of defence which, the defendant says, the plaintiff should have consented to from the outset rather than after the defendant’s motion materials had been served.

[4] The plaintiff says that success was divided and, accordingly, with a caveat discussed below, there should be no award of costs to either side. Furthermore the question of the limitation period applicable to claims for a liquidated sum asserted under a provision of the lease dealing with a tenant’s breach of certain obligations was a question of first impression, for which there were no governing authorities.

[5] The plaintiff also asserts that the trial will be just as long since all the motion achieved was to reduce the quantum of damages available under one of the heads of claim advanced by the plaintiff.

[6] This latter position overlooks the fact that the trial will be shortened as a result of the limitation defences pleaded by the defendant having been determined on the summary judgment motion.

[7] Furthermore, the plaintiff should have consented to the proposed amendments to the statement of defence, given the general rule that leave to amend a pleading shall be granted on such terms as are just unless prejudice would result that cannot be compensated for by costs or an adjournment (Rule 26.01).

[8] In my view the defendant succeeded on what was clearly its best argument. It was entirely reasonable to advance other limitation arguments alongside the successful one. The bulk of the time spent in argument focused on the limitation period applicable to the liquidated damages provision in the lease. The impact of the defendant’s success on that issue, in monetary terms, is a reduction of the amount recoverable by the plaintiff by approximately $470,000.

[9] The defendant’s position on costs appropriately weighs the measure of success enjoyed by the defendant. The rates of the fee-earners and the amounts of time claimed by the defendant appear reasonable. While the precise issue of the limitation period applicable to the type of lease provision in question had not been previously decided, I would not accept that the issue was wholly novel.

[10] The caveat mentioned above relates to the plaintiff’s claim for $21,968.63 in respect of rent arrears. The defendant made this payment in March 2012, shortly after the action was commenced, which the plaintiff admitted to receiving in its reply to the statement of defence.

[11] The issue of rent arrears could and should have been cleared up on consent prior to the defendant’s motion being brought. But it was not and the plaintiff looks for costs associated with the inclusion of that claim in its pleading and having to address the issue in its motion material. $1,397.70 is claimed for costs plus interest of $606.70. Both of these amounts are reasonable in the circumstances.

[12] By reason of the above, the plaintiff shall pay costs of the motion of $9,421.97, from which may be deducted $1,397.70 for costs payable by the defendant to the plaintiff (the net amount payable by the plaintiff to the defendant for costs therefore being $8,024.27). The defendant shall pay to the plaintiff pre-judgment interest in the amount of $606.70.

Mew J

Date: 23 May 2014