COURT FILE NO.: CV-13-487955

DATE: 20140609

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: YORK CONDOMINIUM CORPORATION NO. 301, Applicant

AND:

VALERIE VICTORIA JAMES, BY HER LITIGATION GUARDIAN, THE PUBLIC GUARDIAN AND TRUSTEE, Respondent

BEFORE: B. P. O’Marra J.

COUNSEL: Jonathan H. Fine and Joy Mathews, for the Applicant

Yeon-Tae Kim, for the Respondent

HEARD: In writing

costs ENDORSEMENT

[1] On April 14, 2014 I ordered that Valerie Victoria James vacate her unit and that the unit be sold. On February 7, 2014 Justice Morgan had appointed the Office of the Public Guardian and Trustee as Litigation Guardian for Ms. James.

[2] The applicant now seeks legal fees and other amounts as follows: $117,769.65 on a partial indemnity scale; and $125,230.48 on a full indemnity scale.

additional actual costs

[3] Section 134(5) of the Condominium Act, 1998 (the “Act”) refers to legal costs owed by the condominium corporation to its lawyers and to costs incurred in obtaining the order.

Metropolitan Toronto Condominium Corp. No. 1385 v. Skyline Executive Properties Inc., 2005 CanLII 13778 (ONCA) at para. 45.

[4] A court determining “additional actual costs” under s. 134(5) of the Act must consider what would be a reasonable amount for the condominium corporation to pay its own lawyer to obtain the compliance order. This assessment is based on the principle of quantum meruit. A court must then explain how it arrived at the right amount.

Durham Standard Condominium Corp. No. 187 v. Morton [2012] O.J. No. 4375 (Div. Crt.) at para. 16.

[5] Section 134(5) of the Act speaks separately to “an award of costs” on the one hand and “additional actual costs” on the other hand. “An award of costs” refers to the costs that the court orders one litigant to pay another litigant. “Additional other costs” can encompass those legal costs owing as between the client and its own lawyer beyond the costs that the court ordered paid by the opposing party.

Skyline Executive Properties (supra) at para. 8.

[6] The applicant should be able to recoup almost all of what it paid to its lawyers to obtain the order. The focus is on what amount would be reasonable for a client to pay its own lawyer. The principles governing the assessment of legal bills as between a lawyer and a client should govern a claim for “additional legal costs”.

Skyline Executive Properties (supra) at para. 45.

analysis

[7] The costs submissions for the applicant include the following charges that are neither legal fees nor disbursements. They are as follows:

Locksmith charges

$ 2,828.05

Security charges

20,868.84

Plumbing charges

1,243.00

Fire inspection and environmental restoration charges

2,886.27

$27,826.16

Those items are real costs incurred by the applicant as a consequence of the respondent’s behaviour but they are not “additional actual cost” within the meaning of the Act. They also cannot be described as having been incurred in obtaining the order. The award of costs will not include those items.

[8] The lawyers for the applicant have submitted for 305.8 hours. That includes 46.1 hours for Mr. Fine (1976 call to the Bar) and 243.4 hours by Joy Mathews (2012 call to the Bar). Both Mr. Fine and Joy Mathews attended and billed for motion scheduling dates as well as hearing dates. The combined court attendance total was 53.3 hours. It was not necessary or reasonable that both senior and new associate attend for the various scheduling dates.

[9] I am satisfied that a considerable amount of work was required to thoroughly prepare the materials filed on behalf of the applicant. However, the number of hours required, particularly attributed to less experienced counsel, was excessive.

[10] The applicant’s lawyers have significant experience and expertise in the area of condominium law. In my view, it is not reasonable expect that the applicant would pay for the excessive number of hours submitted for the lawyer who was called to the Bar in 2012. Most of those hours appear to be dedicated to the training and education of a young associate.

[11] The Court is entitled to sanction reprehensible conduct by a party in a costs order. In granting judgment in favour of the applicant I found that the conduct of Valerie Victoria James was antisocial and unacceptable. However, the misconduct flowed from the uncontested fact that she suffers from a mental illness.

[12] The appointment of the Public Guardian and Trustee as Litigation Guardian was based on a finding that Valerie Victoria James was under a disability. She was incapable of understanding the information and issues in the proceeding.

[13] The applicant presented very thorough materials on the application. The Litigation Guardian did not contest the alleged conduct of Ms. James. Brief oral submissions were directed solely to whether a remedy short of sale of the unit was appropriate.

[14] In my view, the applicant on this record would reasonably expect to pay the following to their own lawyers: 46 hours for Mr. Fine at his actual rate and 120 hours for the associate called to the Bar in 2012 at a partial indemnity rate plus disbursements of $5,277.11.

result

[15] Costs are payable to the applicant in the amount of $58,000.00 inclusive of disbursements and HST.

B. P. O’Marra J.

Date: June 9, 2014