CITATION: Cross Bridges Inc. v. Z-Teca Foods Inc., 2015 ONSC 3591
COURT FILE NO.: CV-13-0212-00
DATE: 2015 06 03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CROSS BRIDGES INC.
Romesh Hettiarachchi, for the Plaintiff
Plaintiff
- and -
Z-TECA FOODS INC.
Julian Binavince and Maheen Merchant, for the Defendant
Defendant
HEARD: December 15, 2014 and January 19, 2015 in Brampton, Ontario
COSTS ENDORSEMENT
EMERY J
[1] The defendant Z-Teca Foods Inc. (“ZTF”) successfully opposed the motion for summary judgment of the plaintiff Cross Bridges Inc., and now seeks costs. ZTF was more successful than just having the motion dismissed because the court dismissed the claim Cross Bridges was making on the loan agreement. The motion failed and the claim on the loan agreement was dismissed because I found that Cross Bridges had commenced the action to enforce that claim more than two years after it would have discovered the loss, being the last postdated cheque that went NSF.
[2] ZTF seeks costs for the motion and the consequent motion seeking leave of the court to consider further evidence, which was also dismissed. ZTF seeks its costs on a partial indemnity basis in the following amounts:
Costs $16,624
HST $2,161
Disbursements $1,039 (inclusive of HST)
Total $19,824
[3] ZTF asks the court to exercise discretion under section 131(1) to award costs in its favour, and to award those costs on a fair and reasonable basis having regard to the factors set out in Rule 57.01(1).
[4] Cross Bridges argues against ZTF’s entitlement to costs on the basis that ZTF has received a windfall by the dismissal of the claim for $276,000 under the loan agreement. The three points argued by Cross Bridges, and the answers to those points, are as follows:
Point 1: The president of ZTF, Gabriel Sarracini, candidly admitted under oath at his examination for discovery that ZTF is indebted to Cross Bridges in an amount to be determined. Cross Bridges states that, despite the admission, it is unable to make a claim for that amount because of the expiry of the limitation period.
Answer: This is not a case where Cross Bridges had only four days from January 13 to January 17, 2011 to bring an action. Cross Bridges had two years to bring its action. It has only itself to blame that it waited 734 days to take that step.
Point 2: ZTF is enriched by the value of the loan because of the dismissal.
Answer: Not necessarily. A close reading of my endorsement at paragraph 39 shows that the decision did not consider the claim made in the amended statement of claim under the “alternate contract” as it was never made an issue on the motion.
Point 3: Any costs allowed should be set off against the amount of outstanding debt insulated by the limitation period.
Answer: Cross Bridges makes this argument without providing an Ontario authority for it. Counsel provides the content of section 22(1) of the Limitation Act, SBC 2012 that allows a set off with respect to a related claim “even though limitation periods applicable to either or both of the claims has expired.” While that may be the law in British Columbia, a similar provision is not found in the (Ontario) Limitation Act, 2002.
[5] The overarching principles set out by decisions such as Boucher et al. v. Public Accountants Council for the Province of Ontario et al., 2004 14579 (ON CA), [2004] O.J. No. 2634, [2004] 71 O.R. (3d) 291 (Ont. C.A.) and Zesta Engineering Ltd. v. Cloutier (2002), 2002 25577 (ON CA), 21 C.C.E.L. (3d) 161 (Ont. C.A.) make it clear that the court must award what is fair and reasonable for costs under all the circumstances. The amount of a costs award is not necessarily measured by what the successful party paid to its lawyer, or a calculation based on the number of hours expanded multiplied by an hourly rate.
[6] One of the best measures of what is a fair and reasonable amount for cost is what the unsuccessful party could reasonably have expected to pay. Cross Bridges did not file a bill of costs showing what it might have expected to claim if successful, or to pay if it were not. Therefore, I am left with assessing the reasonableness of the ZTF bill of costs in terms of what I consider to be reasonable and fair.
[7] I consider the time claimed for researching the law on acknowledgment of debt and limitation periods (4.6 hours), the research for the motion (5.7 hours) and the factum work (15.2 hours) on the high side. After making adjustments to those items, I award costs to ZTF in the amount of $12,500, HST on fees of $1,625, and $1,039 for disbursements for a total of $15,164. This amount is payable by Cross Bridges Inc. within 30 days.
EMERY J
Released: June 3, 2015
CITATION: Cross Bridges Inc. v. Z-Teca Foods Inc., 2015 ONSC 3591
COURT FILE NO.: CV-13-0212-00
DATE: 2015 06 03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CROSS BRIDGES INC.
Plaintiff
- and -
Z-TECA FOODS INC.
Defendant
COSTS ENDORSEMENT
EMERY J
Released: June 3, 2015