ONTARIO
SUPERIOR COURT OF JUSTICE
KINGSTON COURT FILE NO.: CV-13-163-SR
DATE: 2014/09/10
BETWEEN:
Allison Briscoe-Montgomery and Thomas Montgomery
Plaintiffs/Moving Parties
– and –
Anna Kelly
Defendant/Responding Party
Kurt R. Pearson, for the Plaintiffs/Moving Parties
David M. Adams, for the Defendant/ Responding Party
– and –
Ray Raymond and the Mortgage Alliance Company of Canada
Third Parties
The Third Parties did not participate in this motion
HEARD in KINGSTON: July 10, 2014
ENDORSEMENT as to COSTS
[1] This matter was heard on July 10, 2014 by way of a half-day long motion for summary judgment resulting in a ruling dated July 16, 2014. The issue was one of quantifying the damages resulting from the Defendant’s inability to close a real estate transaction as per a binding agreement of purchase and sale. In the result, the Plaintiffs were awarded the full loss sustained on the resale of the property, the sum of $43,000. In addition, the Plaintiffs were awarded $18,268.20 in special damages, although they were seeking $32,765.31.
[2] I note that in September 2013, the Plaintiffs made an offer to settle their claim for $40,000 with respect to the loss sustained on the resale of the property and $30,000 with respect to the special damages.
[3] The Plaintiffs achieved overall success. While it is true that in declining the Plaintiffs’ September 2013 offer to settle the Defendant has come out roughly $12,000 to the better, that is an unimpressive result when contrasted against the passage of time and the costs inflicted upon all parties arising out of the matter having to go the distance it did.
[4] That said, the conduct of the Defendant was never so unreasonable as to deserve some sort of sanction. The Defendant made meaningful offers to settle. As well, appropriate admissions and concessions were made and the presentation of the Defendant’s case before the court was organized and concise.
[5] I have considered the general principles relating to costs as outlined in rule 57.01 of the Rules of Civil Procedure. In particular, in addition to the result in the proceeding and the offers to settle, I have considered the amount claimed and recovered in the proceeding, as well as the complexity of the issues advanced before the court. Of course, I have reviewed the bills of costs submitted by both counsel and have come to an appreciation of all that was required to bring about the end result achieved. In doing so, I have kept in mind that, “The overriding principle of reasonableness must govern, rather than any exact calculation of what cost should be allowed. A line by line assessment of the fees is not required” (see: 1175777 v. Magna International (2007) 61 RPR (4th) 68 (Ont. C.A.).
[6] This is an appropriate case for an award of partial indemnity costs. I fix costs at $20,000 inclusive of taxes and disbursements payable by the Defendant to the Plaintiffs.
Justice Kevin Phillips
Released: September 10, 2014
KINGSTON COURT FILE NO.: CV-13-163-SR
DATE: 2014/09/10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Allison Briscoe-Montgomery and Thomas Montgomery
Plaintiffs/Moving Parties
– and –
Anna Kelly
Defendant/Responding Party
– and –
Ray Raymond and the Mortgage Alliance Company of Canada
Third Parties
ENDORSEMENT AS TO COSTS
PHILLIPS J.
Released: September 10, 2014