SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-14-496482/CV-14-484116

DATE: 20140908

RE: 2296608 ONTARIO INC., Applicant

AND:

DHMK PROPERTIES INC., Respondent

AND RE:

DHMK PROPERTIES INC., Applicant

AND:

2296608 ONTARIO INC. and MUND REAL ESTATE GROUP INC., Respondents

BEFORE: B. P. O’Marra J.

COUNSEL:
James F. Diamond, for the Applicant 2296608 Ontario Inc.

Geoffrey D. E. Adair, Q.C. and Khalid Janmohamed, for the Applicant DHMK Properties Inc.

HEARD: In writing

COSTS ENDORSEMENT

[1] DHMK requests costs on a substantial indemnity basis all inclusive in the amount of $45,939.85 against 229 and Mund on a joint and several basis. DHMK’s fees and disbursements on a partial indemnity basis are $33,137.73.

[2] DHMK was entirely successful in responding to the application of 229 as well as its counter application against 229 and Mund. Mund was ordered to pay the deposit of $100,000.00 and is liable to pay damages for breach of the Agreement of Purchase and Sale.

[3] 229 submits that costs should be awarded on a partial indemnity basis and fixed at $18,000.00 all inclusive. 229 made no submissions in response to DHMK’s claim for a costs order against 229 and Mund jointly and severally. In order to defend the original application and seek return of the deposit DHMK properly named both 229 and Mund as parties on the counter application. I am satisfied that the costs order should be made against 229 and Mund on a joint and several basis.

[4] The facts on the application and counter application were essentially non-controversial. The outstanding issues related to contractual interpretation. I am not satisfied that this is an appropriate case for the award of substantial indemnity costs.

[5] The overall objective is to fix costs in an amount that is fair and reasonable including the amount of costs that an unsuccessful party could reasonably expect to pay.

Rule 57.01(1), Rules of Civil Procedure.

Boucher v. Public Accountants Council (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).

[6] The Bill of Costs submitted by DHMK includes a total of slightly over 90 hours between two counsel. The materials submitted by both sides clearly required substantial time and effort to prepare. Oral submissions occupied most of a judicial day.

[7] DHMK is entitled to costs as submitted on a partial indemnity scale. In light of the legal issues involved the number of hours expended by their counsel was not excessive.

result

[8] DHMK is awarded costs against 229 and Mund on a joint and severable basis in the amount of $33,000.00 including fees, disbursements and HST.

B. P. O’Marra J.

Date: September 8, 2014