2015 ONSC 4982

BARRIE COURT FILE NO.: 15-0205

DATE: 20150806

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mapleview-Veterans Drive Investments Inc., Applicant

AND:

Papa Kerollus VI Inc., c.o.b. as Mr. Sub, c.o.b. as Mr. Submarine-Mapleview and Mr. Submarine Limited, Respondents

BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN

COUNSEL: I.P. Katchin, Counsel for the Applicant

S.M. Addison, Counsel for the Respondent, Papa Kerollus VI Inc., c.o.b. as Mr. Sub, c.o.b. as Mr. Submarine-Mapleview

HEARD: By written submissions

COSTS ENDORSEMENT

[1] This application was heard on May 28, 2015. The applicant sought an order that its tenant was in breach of a lease and a declaration that the renewal option was void for uncertainty. The respondent, Papa Kerollus VI Inc., c.o.b. as Mr. Sub, opposed the relief sought. By way of an endorsement dated June 12, 2015, I determined that there were issues that ought to be resolved by way of a trial; issues that could not be resolved on the basis of affidavit material. The tenant achieved a degree of success, having avoided the termination of the lease until issues are adjudicated.

[2] The parties were given an opportunity to resolve costs or make submissions. I have now received submissions from the respondent tenant, and the applicant landlord. The respondent tenant seeks costs of $30,792.74, including fees, disbursements and HST on a partial indemnity basis. This reflects an hourly rate of $350 for experienced counsel claiming over seventy hours in connection with this matter.

[3] In reply, the applicant submits that costs should be reserved for the trial judge, or alternatively, costs should be reduced to $17,449.71, all inclusive. The reduced figure is suggested because the applicant submits that the costs claimed and hours spent are excessive. Further, that twenty percent of the costs claim relate to arrears issues that will have to be determined at trial. The landlord submits that the tenant was not entirely successful at the application. There are issues that still have to be determined and it would be premature to make a costs order at this point.

[4] The applicant landlord did not submit its own costs for comparison purposes. It is always of assistance if the unsuccessful party submits its own costs as a reasonable guide to what costs it may have anticipated.

[5] It is well settled that s. 131 of the Courts of Justice Act, R.S.O. 1990, c.C.343 provides considerable judicial discretion on the issue of fixing costs. Rule 57.01 of the Rules of Civil Procedure sets out various factors that the court can consider in exercising this discretion, including the principle of indemnity, the amount of costs an unsuccessful party would expect to pay, the complexity of the proceeding, and the importance of the issues. The objective is to fix an amount that is fair and reasonable for an unsuccessful party to pay in a particular proceeding. See: Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634.

Conclusion

[6] There is no doubt that this was an important issue for the respondent tenant. If the applicant had been successful on the application, the tenant would have been required to vacate almost immediately with potentially considerable amounts of arrears owing to the landlord. I am satisfied that the time spent by counsel for the respondent was appropriate under the circumstances and the hourly rates are appropriate for counsel with her level of experience. As noted, the applicant did not provide its own costs for comparison purposes.

[7] It is clear that there are ongoing issues that will have to be resolved by way of settlement or a trial of issues. Both parties will continue to incur costs until the issues are resolved. However, I do not believe that this is an appropriate Application where costs should be reserved to the trial judge. The respondent tenant achieved a level of success protecting its position as a tenant until the issues are resolved. This is a case where it is important to award costs at this step of the proceeding to the successful party.

[8] I accept the applicant’s position that costs should be reduced to reflect issues surrounding arrears which have not yet been adjudicated. I accept the applicant’s position that costs should be reduced to reflect the arrears issues yet to be determined by the court. In considering the underlying costs principles, including reasonableness and proportionality, and considering the twenty percent reduction requested by the applicant, I am satisfied that an award of costs of $24,000 all inclusive, payable by the applicant to the respondent is fair and reasonable under the circumstances. Costs of $24,000 payable forthwith.

MULLIGAN J.

Date: August 6, 2015