M.I.S. Ventures Inc. v. Heste Corporation, 2015 ONSC 3033

NEWMARKET COURT FILE NO.: CV-14-120625-00

DATE: 20150512

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

M.I.S. VENTURES INC.

Plaintiff

– and –

HESTE CORPORATION and RE/MAX REALTRON REALTY INC.

Defendants

Amrita Mann, for the Plaintiff

Leo Klug, for the Defendant Heste Corporation

HEARD: by written submissions

REASONS ON COSTS

DiTOMASO J.

PROCEEDINGS

[1] The Plaintiff M.I.S. Ventures Inc. (“M.I.S.”) brought a motion for an order granting leave for the issuance of a Certificate of Pending Litigation (“CPL”). In the alternative, M.I.S. sought an order that Heste Corporation (“Heste”) pay into court the sum of $60,000 as security for costs of this action. The motion was opposed by Heste.

[2] On April 15, 2015 I issued my Reasons for Decision. M.I.S. was entirely successful on the motion and an order granting leave for the issuance of the CPL regarding certain lands described in the Notice of Motion was given in favour of M.I.S. Costs were to be determined by way of written submissions.

[3] The motion was brought in anticipation of a real estate closing scheduled for April 16, 2015.

[4] As a result of my order, my reasons were registered on title of the subject lands together with a caution.

[5] Because of the caution, counsel for Heste sought an amendment to my Reasons permitting the payment into court of $60,000 along with the removal of the caution.

[6] There was some delay in obtaining instructions by counsel for M.I.S. from the client. As a result, Heste brought a motion returnable before me on April 16, 2015. That motion settled with Heste paying the sum of $60,000 to the Accountant of the Superior Court of Justice to the credit of this action. As part of the settlement, M.I.S. lifted the caution and removed it from title.

[7] Costs are sought in respect of the attendance on the CPL motion brought by M.I.S. and for costs sought as a result of Heste’s motion to vary returnable April 16, 2015 which motion settled.

POSITIONS OF THE PARTIES – MOTION HEARD APRIL 14, 2015

Position of M.I.S.

[8] M.I.S. seeks costs that follow the event. An Offer to Settle was delivered by letter dated April 9, 2015. Although M.I.S. did not wish to disrupt the sale, M.I.S. needed to protect its interest. On the basis that M.I.S. had a reasonable claim to interest in the property, a CPL motion was served. It was proposed that a CPL would not be sought if Heste posted the amount of the deposit of $60,000 into court. Heste refused to do so and M.I.S. brought its motion on April 14, 2015.

[9] As M.I.S. was fully successful in respect of the motion, M.I.S. claims full indemnity costs in the amount of $12,681.86 or in the alternative, partial indemnity costs in the amount of $8,572.16. In M.I.S.’ costs submissions, M.I.S. seeks costs on a substantial indemnity basis, if not on a full indemnity basis (see Gokstorp v. TD Insurance Meloche Monnex (No. 2), 2010 ONSC 673.

Position of Heste

[10] Heste submits that as M.I.S. was successful on the CPL motion, MIS is entitled to costs on a partial indemnity basis. Those costs total the sum of $2,045.58. Heste relies upon the Court of Appeal’s decision in Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579.

[11] Unbeknownst to defence counsel, M.I.S. registered a caution on title at 4:35 p.m. on April 14, 2015 annexing my Reasons.

[12] Counsel could not resolve the matter with respect to amending my Reasons and permitting payment into court of $60,000. This resulted in both counsel attending before me on April 16, 2015.

[13] It is submitted that there was no necessity for registering the caution. It is further submitted that this was a simple matter of Plaintiff’s counsel consenting to payment into court and taking out a consent order.

[14] Counsel for Heste submits that the costs of the attendance on April 16, 2015 should be set off against the costs of the attendance of April 14, 2015 and as a result, there should be no costs awarded for both attendances.

ANALYSIS – M.I.S.’ CPL MOTION HEARD APRIL 14, 2015

[15] M.I.S. was the successful party in respect of this motion. The motion was contested and ultimately, the CPL was granted. Costs follow the event.

[16] The central issue relates to quantum.

[17] I find that this is not a case for full indemnity costs. The opposition to M.I.S.’ motion was legitimate and not frivolous. Notwithstanding, I did not find, for reasons given, in favour of Heste and the CPL was granted.

[18] I have taken into account the Offer to Settle extended by M.I.S. and, of course, the ultimate successful result. M.I.S. sought the issuance of a CPL and, in the alternative, payment into court of $60,000. I cannot say whether the Offer to Settle amounted to a better result for M.I.S. Rather, the ultimate result was M.I.S. being granted leave to issue a CPL which was exactly the remedy sought.

[19] Accordingly, in this case, I am guided by the overriding principles of what is fair, reasonable and proportional. See Davis v. Clarington (Municipality) 2009 ONCA 722. The Boucher case as well as other relevant authorities are cited by the Ontario Court of Appeal in Davis.

[20] While I have no difficulty with the partial indemnity rates being claimed by counsel on behalf of M.I.S., I am concerned about the number of hours devoted to this matter as set out in the M.I.S.’ Costs Outline (CPL Motion).

[21] For a motion of this sort and given the time that was devoted to the matter, both in terms of preparation and attendance before the Court, I do not agree that $8,572.16 is a fair, reasonable and proportional amount that the unsuccessful party would be expected to incur by way of costs on this motion.

[22] Rather, I exercise my discretion in all of the circumstances in fixing costs for the M.I.S. CPL motion in the amount of $5,000 all inclusive of fees, costs, disbursements and HST payable by Heste Corporation to M.I.S. Ventures Inc. within the next 30 days from the date of this decision.

HESTE’S MOTION TO VARY/AMEND HEARD APRIL 16, 2015

[23] This motion settled. It was indeed unfortunate that the matter could not settle until the matter came before me on April 16, 2015. Heste brought its motion to amend my Order to allow payment into court and the removal of the caution. In the end, on consent, the sum of $60,000 was paid to the Accountant of the Superior Court of Justice to the credit of this action and the caution was removed upon settlement. In the end, monies were paid into court and the caution was removed.

[24] Under the circumstances, there shall be no costs awarded to M.I.S. and Heste regarding the motion to vary/amend. Neither party is entitled to costs on the attendance of April 16, 2015. I find that the parties arrived at a settlement which would have precluded a court attendance on that day. Therefore, M.I.S. and Heste shall bear their own costs of the April 16, 2015 attendance.

DiTOMASO J.

Released: May 12, 2015