SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

RE: DBDC Spadina Ltd. and Those Corporations Listed on Schedule A Hereto, Applicants

AND:

Norma Walton, Ronauld Walton, The Rose & Thistle Group Ltd. and Eglinton Castle Inc., Respondents

AND:

Those Corporations Listed on Schedule B Hereto, To Be Bound by the Result

BEFORE: D. M. Brown J.

COUNSEL:
S. Roy, for the Applicants

I. Marks and D. Michaud, for Computershare Trust Company of Canada as nominee for Trez Capital Limited Partnership

HEARD: Written cost submissions dated May 30 and June 13, 2014.

REASONS FOR DECISION – costs

Costs of an abandoned motion

[1] Computershare Trust Company of Canada as nominee for Trez Capital Limited Partnership (“Trez”) seeks partial indemnity costs of $12,141.85 in respect of the motion abandoned by the applicants which sought to declare invalid the Trez Mortgage registered against 1450 Don Mills Road, Toronto. The applicants submitted that there should be no costs or, in the alternative, that the costs claimed were excessive.

[2] The applicants’ motion was served on February 14, 2014 and originally returnable March 5. Trez sought an adjournment, to which the applicants consented. On March 4, 2014, Trez informed the applicants that a scheduling appointment should be set up with the Court to re-schedule the motion. Applicants’ counsel responded that day:

I wonder if your time in the short term might be better spent just letting me have any other email or other documentation that your client has in its possession which would support the conclusion that it was unaware of Dr. Bernstein’s interest and the misconduct of the Waltons et al in increasing the mortgaging without authority to do so.

If we could over the next day or so focus on that, it may help us all avoid this issue.

[3] Trez’s lawyer responded that day by providing some additional information, but concluded:

Please advise if your client has changed its position. We will continue to prepare our materials in the interim.

[4] In my view that was not a reasonable position for Trez to take given that no date had been set or sought for a re-scheduled hearing of the applicants’ motion. Counsel for the applicants obviously was signaling in his email that the parties should continue discussions in an effort to resolve the motion. Accordingly, Trez is not entitled to recover any costs incurred after March 4, 2014.

[5] What about the roughly $8,235 in legal fees incurred up until March 4, according to the dockets of Trez’s counsel? From those dockets, it appears that the drafting of responding affidavits did not commence until March 5; the time before that date consisted of reviewing the applicants’ materials and formulating a responding strategy. Given that the motion, as it affected Trez, involved the mortgage on only one piece of property, I consider the amount of the partial indemnity costs claimed by Trez to be excessive.

[6] Trez is entitled to reasonable partial indemnity costs given that the applicants abandoned their motion. Upon a review of Trez’s dockets and a consideration of the factors set out in Rule 57.01, I concluded that $5,000.00, all-in, would be a fair and reasonable award of partial indemnity costs to Trez for the abandoned motion, and I order the applicants to pay Trez that amount within 30 days of the date of this order.

D. M. Brown J.

Date: June 30, 2014