Eureka Farms Inc. v. Luten et al, 2015 ONSC 2974
COURT FILE NO.: C-842-13
DATE: 2015-05-12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Eureka Farms Inc.
Plaintiff
– and –
Roelof Geuchien Luten also known as
Roel Luten And Roelofje Femmigje
Remmelts-Luten also known as
Roelofje Femmigje Remmells-Luten
Defendants
AND BETWEEN:
Roelof Geuchien Luten also known as
Roel Luten And Roelofje Femmigje
Remmelts-Luten also known as
Roelofje Femmigje Remmells-Luten
Plaintiffs by Counterclaim
– and –
Eureka Farms Inc., Eva Boerkamp, Estate
Trustee of the Estate of Rene Boerkamp,
also known as Renatus Boerkamp and Eva
Boerkamp
Defendants to Counterclaim
David J. Medcalf, Counsel for the Plaintiff
G. Edward Oldfield, Counsel for the Defendants
G. Edward Oldfield, Counsel for the Plaintiffs by Counterclaim
David J. Medcalf, Counsel for the
Defendants to Counterclaim
THE HONOURABLE MR. JUSTICE R.D. REILLY
rULING AS TO COSTS
[1] The plaintiff and defendants to counterclaim (referred to simply as Eureka Farms Inc.) were completely successful on the contested issue, a claim founded essentially in breach of contract for the sale of the real property. The issue was debated in large part on a recent decision of the Supreme Court of Canada – Bhasun v. Hrgnew, a decision released just days before the start of trial.
[2] Bouth counsel, Mr. Medcalf and Mr. Oldfield, cooperated to make the best use of court time and to assist the trial judge with respect to the somewhat unusual facts of the case. In the final result, the court ruled in favour of the defendants to counterclaim, Eureka Farms Inc., though the court expressed some sympathy for the position of the defendants, the Luten family.
[3] For the purpose of assessing costs of the action, I put aside the original claim (a relatively modest amount) and focus only on the issues that relate to the real property, the farm. I was advised that counsel had resolved the claim for assets (or the value thereof) that formed the basis for the original claim.
[4] I am mindful of all the factors set out in Rule 57.01, which the court must consider in determining costs, and believe they have been properly addressed in counsel’s submissions.
[5] Mr. Medcalf, as counsel for the successful parties has made a reasonable request for costs on a substantial indemnity basis from July 25, 2014 onward, the date on which the plaintiff’s offer was made (and not subsequently accepted). There is merit to this position. However, this offer is hardly an offer of “compromise” in order to settle the litigation. It requires a total capitulation on the part of the defendants. This is not determinative of the issue of course, but is a factor that I do take into account, together with the conduct of the defendants, which, though justified in law, contributed to the misunderstanding which led to litigation. In the result, I direct the defendants (the Lutens) to pay costs to the defendants by counterclaim (Eureka Farms Inc.) on a partial indemnity basis, set at $46,000.00, inclusive of fees, disbursements and taxes. Costs are payable forthwith.
R.D. Reilly J.
Released: May 12, 2015
COURT FILE NO.: C-842-13
DATE: 2015-05-12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Eureka Farms Inc.
Plaintiff
– and –
Roelof Geuchien Luten also known as
Roel Luten And Roelofje Femmigje
Remmelts-Luten also known as
Roelofje Femmigje Remmells-Luten
Defendants
AND BETWEEN:
Roelof Geuchien Luten also known as
Roel Luten And Roelofje Femmigje
Remmelts-Luten also known as
Roelofje Femmigje Remmells-Luten
Plaintiffs by Counterclaim
– and –
Eureka Farms Inc., Eva Boerkamp, Estate
Trustee of the Estate of Rene Boerkamp,
also known as Renatus Boerkamp and Eva
Boerkamp
Defendants to Counterclaim
RULING AS TO COSTS
R.D. Reilly J.
Released: May 12, 2015
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