ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 09-8217
DATE: 2014-07-04
B E T W E E N:
Statti Investments Limited
John V. Kranjc, for the Plaintiff
Plaintiff
Defendant by Counterclaim
- and -
Baresa Kitchen Cabinets Inc., 1036328 Ontario Inc., and Nicola Clarizio
A. Douglas Burns and Sharoon Gill, for the Defendants
Defendants
Plaintiff’s by Counterclaim
COSTS RULING
PARAYESKI, J.
[1] This is my costs ruling. It follows upon review of written submissions on that issue which I requested in my ruling from counsel in the event that the parties could not agree.
[2] My substantive ruling followed several days of trial. While the plaintiff/defendant by counterclaim could be described as having “won”, in the sense that I gave a judgment for part of its claim and dismissed the counterclaim, that word is too simplistic. It would be more accurate to describe success as “mixed”. I awarded the plaintiff considerably less than it sought, largely on the basis that its claims, or considerable parts of them, were inadequately proven and not reasonably mitigated. I dismissed as groundless the plaintiff’s claim against the defendant Nicola Clarizio in his personal capacity and also as against the defendant Baresa Kitchen Cabinets Inc.
[3] The action turned upon a commercial lease and whether or not it had been fundamentally breached. The lease itself was poorly drafted, poorly executed, and ambiguous. Both sides are to blame for that. The principals of the corporate parties (Ross Statti in respect of the plaintiff and Nicola Clarizio in respect of the defendants) were equally unbelievable as witnesses. Together their self-serving and illogical evidence prolonged the trial and made deciding it significantly more difficult than would otherwise have been the case.
[4] But for the fact that the plaintiff had served and offered to settle that appears to be such that the defendants ought to have accepted it, I likely would have awarded no costs.
[5] The offer is dated November 15, 2012. It held out two options. The first asked for payment of $100,000.00 within two days of the making of the offer, that sum being inclusive of all damages, prejudgment interest to the date of the offer, and costs. The second option was the payment, after expiry of the two day period mentioned above, of $90,000.00 plus prejudgment interest thereon from the date of the offer, plus costs on the partial indemnity scale to the date of the offer and on the substantial indemnity scale thereafter. My award after trial was for $90,000.00 plus prejudgment interest. Clearly, at least the first option was “bettered”. I am not prepared to do the arithmetic necessary to parse the dollar value of the second option. Neither set of submissions went to that trouble, so I presume that nothing of significance turns on it.
[6] Considering all of the above and the factors on costs set out in the Rules, including the broad discretion granted to me under Rule 49.13, I am of the view that the appropriate award of costs is that the defendant 1036328 Ontario Inc. shall pay to the plaintiff costs fixed at $50,000.00 all inclusive. I am fully cognizant of the fact that $50,000.00 is less than 50 percent of the costs asked for in the plaintiff’s submissions. That amount is so significantly disproportionate to the amounts at stake in this action as to warrant being disregarded.
PARAYESKI J.
DATE: July 7, 2014
COURT FILE NO.: 09-8217
DATE: 2014-07-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Statti Investments Limited
Plaintiff
- and –
Baresa Kitchen Cabinets Inc., 1036328 Ontario Inc. and Nicola Clarizio
Defendants
COSTS RULING
PARAYESKI J.
MDP:mw
Released: July 7, 2014