ONTARIO SUPERIOR COURT OF JUSTICE

BARRIE COURT FILE NO.: 14-1387

DATE: 20150713

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SIMCOE CONDOMINIUM CORPORATION NO. 89

Applicant

– and –

JOSEPH STEFANO DOMINELLI and DIANNA LABRANCHE

Respondents

S. Hodis, Counsel for the Applicant

F.A. McFarlane, Counsel for the Respondents

HEARD: By Written Submissions

COSTS ENDORSEMENT

QUINLAN J.:

Overview

[1] The respondent Joseph Dominelli is the owner of a condominium in the applicant Simcoe Condominium Corporation No. 89. The respondent Dianna Labranche is Mr. Dominelli’s fiancé. The respondents were aware when Ms. Labranche moved with her dog into Mr. Dominelli’s condominium that the weight of Ms. Labranche’s dog exceeded the 25-pound weight restriction imposed by the applicant’s Rules. The applicant asked the respondents to remove the dog. The respondents removed the dog temporarily, but refused to do so permanently, claiming that Ms. Labranche required the dog as a therapy dog. After a hearing that lasted much of two days, I found that the respondents had not established a prima facie case of discrimination under the Human Rights Code (the Code) and I ordered that the respondents comply with their obligations under the Condominium Act (the Act), Declaration and Rules and remove the dog. In addition, I granted a declaration that the applicant had not discriminated against the respondents in violation of the Code.

Positions of the Parties

Applicant’s Position

[2] The applicant was successful and is entitled to costs jointly and severally against the respondents on a full indemnity scale in the amount of $48,430.41 inclusive of HST and disbursements. It would be unfair to innocent neighbours to have to bear any costs because of the respondents’ actions. The principle of proportionality does not apply in the context of an application for compliance as no monetary award of damages was imposed. The respondents were warned of the cost consequences if they were unsuccessful; they refused an early offer to resolve the matter and increased costs by filing an application before the Human Rights Tribunal. The respondents had no realistic prospect of success. The financial position of the respondents, for which there is no evidence, and the consequences of the court order are not factors for the court to consider. Costs should be payable within 20 days so that a special assessment of owners is not required. The costs sought are not “additional costs” within the meaning of s. 134(5) of the Act.

Respondents’ Position

[3] The respondents ask the court to keep in mind their limited financial resources, the challenge of moving and their legitimate belief of potential success. Ms. Labranche was at the mercy of her doctor’s advice, advice with which she agreed, that it was not necessary for her to disclose her personal and confidential medical information. The application was premature as the applicant did not wait to confirm whether the respondents would permanently remove their dog. The applicant’s costs are disproportionately large, especially considering a similar ongoing proceeding, and would result in “double recovery” if granted in full. Some entries in the Costs Summary are inaccurate and the applicant’s counsel lengthened the hearing by making unnecessary submissions. The costs for the Human Rights Tribunal application should not be allowed, or, if allowed, should be significantly reduced. Any award of costs should encompass “additional costs” as set out in s. 134(5) of the Act and be apportioned on an equal basis to each respondent. Costs of $20,000 inclusive of additional costs as set out in s. 134(5) would be fair and reasonable.

Legal Principles

[4] The award of costs is governed by s. 131 of the Courts of Justice Act, R.S.O. 1990 c. C. 43 and by Rule 57.01 of the Rules of Civil Procedure. Section 131 clothes the court with its general discretion to fix costs. Rule 57.01 provides a measure of guidance in the exercise of that discretion by enumerating certain factors that the court may consider when assessing costs.[^1]

[5] In particular, the court may consider any of the following factors:

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs. R.R.O. 1990, Reg. 194, r. 57.01 (1); O. Reg. 627/98, s. 6; O. Reg. 42/05, s. 4 (1); O. Reg. 575/07, s. 1.

[6] Ultimately, in fixing an amount for costs, the overriding principles are fairness and reasonableness.[^2]

[7] Generally, the court ought not to second guess the time spent by counsel. As the court held in Basedo v. University Health Network[^3]:

It is not the role of the court to second guess the time spent by counsel unless it is manifestly unreasonable in the sense that the total time spent is clearly excessive or the matter has been overly lawyered.

[8] It is important to recognize that the assessment process is ultimately not a mechanical exercise.[^4] Instead, the court must take a contextual approach applying the principles and factors enumerated above, to determine a figure that is fair and reasonable in all the circumstances.

Analysis

[9] The applicant was entirely successful. As such, it is presumptively entitled to its costs. The respondents were warned early on in the proceedings of the costs consequences should they be unsuccessful. The respondents refused the applicant’s offer to take a reduction in costs if they would consent to early judgment. The respondents were notified of the evidence required to establish a case of discrimination under the Code but decided to follow the opinion of Ms. Labranche’s doctor as to the evidence necessary to succeed in their claim of discrimination rather than the principles established in the case law. Ms. Labranche’s position that she would not remove the dog without a court order was unreasonable. The respondents’ evidence was far from sufficient to support their claim of discrimination. There is no evidence before me as to the financial resources of the respondents.

[10] Courts have addressed the scale of costs on a condominium application and accepted that full indemnity costs in cases such as this are appropriate. The respondents’ neighbours are blameless in this matter; it is not fair or equitable for other unit owners to have to subsidize the costs of the condominium corporation in pursuing a legal proceeding against a unit owner for their breach of the condominium rules.[^5]

[11] I have thoroughly reviewed the applicant’s counsel’s dockets. I find that the costs are not so disproportionately high as to be manifestly unreasonable. The applicant’s counsel has fairly indicated areas where she reduced costs due to duplication with another proceeding. The only duplication of time by the applicant was in the repetition of submissions on the second day of the application, which resulted in at most 3 hours of additional time, for which there will be some reduction in the costs awarded. I find that the costs related to the respondents’ application to the Human Rights Tribunal are properly claimed and recoverable as costs related to this application. There is no principled reason to depart from the usual award of costs on a joint and several basis. I find it would not be appropriate to deal with additional costs under s. 134(5) of the Act.

[12] Proportionality is a difficult concept to apply given that declaratory relief was sought and there is no monetary award of damages. Having said that, I am satisfied that a review of the time spent and the steps necessary in this application demonstrate that the costs sought, subject to my comment above concerning some duplication of court time, are reasonable and fair in all the circumstances.

[13] Accordingly, this court orders that the respondents shall pay the applicant $47,000 in costs including HST and disbursements within 20 days of the date of this Order.

[14] This court orders that pursuant to s. 85 and s. 134(5) of the Condominium Act, 1988 the costs so fixed and unpaid by the respondents within that time shall be added to the common expense charges for the subject unit and shall be a lien and charge upon the subject unit owned by the respondents.

[15] This court orders that interest is payable on the amounts outstanding in accordance with the applicant’s bylaws with respect to unpaid common expenses.

QUINLAN J.

Released: July 13, 2015

[^1]: Zandersod Company Limited v. Solmar Development Corp., 2011 ONSC 3874 at para. 11

[^2]: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.); Moon v. Sher (2004), 2004 39005 (ON CA), 246 D.L.R. (4th) 440 (Ont. C.A.)

[^3]: [2002] O.J. No. 597 (S.C.J.)

[^4]: Gratton-Masuy Environmental Technologies Inc.(c.o.b.Ecoflow Ontario) v. Building Materials Evaluation Commission, 2003 8279 (ON SCDC), [2003] O.J. No. 1658 at para. 17

[^5]: Chan v. Toronto Standard Condominium Corporation No. 1834, [2011] ONSC 108 at para. 36; Metro Toronto v. Skyline Executive, 2005 13778 (ON CA), [2005] 197 O.A.C. 144, [2005] O.J. No. 1604 (C.A.); Muskoka Condominium Corp. No. 39 v. Kreutzweiser, 2010 ONSC 2463, 2010 Carswell Ont. 2504 (S.C.J.); Grey Standard Condominium Corp. No. 50 v. Grey Standard Condominium Corp. No. 46, [2013] ONSC 1145.