1251614 Ontario Ltd. v. Gurudutt Inc., 2015 ONSC 3508
COURT FILE NO.: C-760-14
DATE: 2015-05-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
1251614 Ontario Limited
Christopher Clemmer, for the Applicant
Applicant
- and -
Gurudutt Inc. o/a Quiznos Sub
Trenton D. Johnson, for the Respondent
Respondent
CORRECTED DECISION
Corrected decision: The neutral citation number of the original Judgment on Costs, released May 20, 2015, was changed to 3508 on June 1, 2015.
JUDGMENT ON COSTS
INTRODUCTION:
[1] The Applicant brought this application seeking an order to have the Respondent execute the Applicant’s Standard Form Lease, with the addition of a demolition clause, as a precondition of the respondent exercising its right to renew its lease.
[2] I found in favour of the applicant (2015 ONSC 2141) and ordered that the respondent must execute the applicants current standard form lease in place as of April 1, 2013 if it wished to renew the lease.
[3] If the parties were unable to agree on costs they were at liberty to provide written submissions. I have now received such submissions from the applicant but not from the respondent.
ANALYSIS:
[4] The applicant was completely successful in this application. It seeks $18,302.53 for costs inclusive of disbursements and HST in partial indemnity.
[5] The respondents draft bill of costs was exchanged with the applicant’s counsel prior to the hearing before me and claimed $18, 146.21 in partial indemnity costs.
[6] I accept that the applicant made serious efforts to settle this matter by producing three separate versions of the proposed lease. It served an Offer to Settle on November 25, 2014 which included the demolition clause but extended the notice period to six months if the demolition clause was invoked. As well it offered very favourable market rent for the renewal and a payment of $100,000.00 if the demolition clause was invoked, along with a waiver of rental arrears calculated by the applicant to be worth approximately $100,000.00.
[7] The respondent’s offer was based on an unconditional lump sum payment of $200,000 plus all the other terms in the applicants offer. The applicant countered with an amortized $200,000.00 payment if the demolition clause was invoked, along with the other earlier offered terms. The respondent refused.
[8] The offer of the applicant is clearly more favourable than my judgment and the applicant would normally be entitled to substantial indemnity costs probably close to $28,000.00 which was the amount in the respondents draft bill of costs on a substantial indemnity basis.
[9] The applicant, however, seeks only partial indemnity costs and is specifically not seeking substantial indemnity costs.
[10] Section 131 of the Courts of Justice Act provides that “costs of and incidental to a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.” Rule 57.01 of the Rules of Civil Procedure enunciates the general factors to be considered by the court in exercising its discretion in relation to costs. I have considered those factors.
[11] As noted by Armstrong J.A. in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3rd) 291 the fixing of costs involves more than merely a calculation using the hours docketed and the cost grid. He further stated in para. 24, “In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.”
[12] The draft bill of costs submitted by the applicant is very fair and reasonable, both for the amount of work done from the inception of this case and the hourly rates charged. I conclude this is an amount that the respondent would have expected to pay having lost this case, as it was almost identical to its own lawyers draft bill. As well I conclude that the applicant made very significant efforts to resolve this matter, which regrettably the respondent failed to accept.
[13] I fix the costs of the applicant at $18,302.53 payable by the respondent forthwith.
Arrell, J.
Released: May 20, 2015
CITATION: 1251614 Ontario Ltd. v. Gurudutt Inc., 2015 ONSC 3508
COURT FILE NO.: C-760-14
DATE: 2015-05-20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
1251614 Ontario Limited
Applicant
– and –
Gurudutt Inc. o/a Quiznos Sub
Respondent
REASONS FOR JUDGMENT
ARREL J.
HAS:mw
Released: May 20, 2015