OPB Realty Inc. v. Canada International Medical Suppliers Company Limited, 2015 ONSC 6
COURT FILE NO.: CV-12-449999
DATE: 20150102
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
OPB REALTY INC.
Plaintiff
– and –
CANADA INTERNATIONAL MEDICAL SUPPLIERS COMPANY LIMITED, MOURAD HAROUN, GEORGE RISKAS, JOHN DOE 1, JOHN DOE 2, and JOHN DOE 3
Defendants
G.F. Camelino for the Plaintiff
Patricia L. McLean for the Defendants Canada International Medical Suppliers Company Limited, Mourad Haroun and George Riskas
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] The Defendants, Canada International Medical Suppliers Company Limited, Mourad Haroun, and George Riskas, brought a motion to enforce a settlement agreement based on an accepted offer to settle.
[2] The Plaintiff, OPB Realty Inc., resisted the motion and submitted that there was no settlement, because the settlement offer had impliedly been withdrawn and, therefore, the offer to settle was not capable of acceptance to form a binding contract.
[3] I agreed with OPB Realty and dismissed the Defendants’ motion. See OPB Realty Inc. v.Canada International Medical Suppliers Company Limited, 2014 ONSC 6578.
[4] OPB Realty now claims costs on a substantial indemnity basis of $14,676.49, all inclusive.
[5] OPB Realty submits that it is entitled to $14,676.49 - which actually is very close to a full indemnity for its costs for the motion - because after it received no response to an invitation to the Defendants to disclose the case law they relied on in support of their motion, OPB Realty delivered an offer to settle the motion. OPB Realty offered a dismissal of the Defendants’ motion with costs on a partial indemnity basis.
[6] In other words, OPB Realty offered the Defendants the opportunity to abandon their motion and to pay costs on a partial indemnity basis, and it now submits that the Defendants’ refusal to accept this offer to settle the motion justifies costs on a full indemnity basis.
[7] An offer to settle need not contain an element of compromise to qualify as an offer that will attract costs consequences. However, the court has a very narrow discretion to deny the costs consequences of the offer to settle rule and may consider the absence of compromise together with other factors when considering whether to depart from the normal rule imposing costs consequences: Elbakhiet v. Palmer, 2014 ONCA 544; Data General (Canada) Ltd. v. Molnar Systems Group Inc. (1991), 1991 7326 (ON CA), 6 O.R. (3d) 409; Walker Estate v. York Finch General Hospital (1999), 1999 2158 (ON CA), 43 O.R. (3d) 461 (C.A.); Niagara Structural Steel (St. Catharines) Ltd. v. W.D. Laflamme Ltd. (1987), 1987 4149 (ON CA), 58 O.R. (2d) 773 (C.A.); Celanese Canada Inc. v. Canadian National Railway Co., 2005 8663 (ON CA), [2005] O.J. No. 1122 (C.A.).
[8] In the immediate case, I regard OPB Realty’s offer to settle as a pretence and not as a genuine offer to settle. OPB Realty knew that there was a very serious issue to be determined about whether or not its offer to settle was capable of acceptance. Its offer that the Defendants simply abandon their motion and pay costs was an offer to settle in the letter but not the spirit of the offer to settle rule, which applies by analogy in the context of motions.
[9] Apart from the tactical offer to settle the motion, there is no basis or reason to award costs on a substantial indemnity basis and, therefore, I am awarding costs on a partial indemnity scale.
[10] The Defendants submit that on whatever scale, for them to pay costs of $14,676.49 for their unsuccessful motion is unreasonable and excessive.
[11] The Defendants point out that their own Bill of Costs, which unlike OPB Realty’s Bill of Costs, was prepared before and not after the outcome of the motion was known, was for $2,800, all inclusive, on a partial indemnity basis. The Defendants submit that a review of dockets for the legal expenses indicates that the appropriate award for costs should be $5,277.80, all inclusive.
[12] In my opinion, applying the usual criteria that guide the court in exercising its discretion to award costs to the circumstances of the immediate case, the appropriate award is costs of $6,800, all inclusive, payable forthwith.
[13] Order accordingly.
Perell, J.
Released: January 2, 2015
CITATION: OPB Realty Inc. v. Canada International Medical Suppliers Company Limited, 2015 ONSC 6
COURT FILE NO.: CV-12-449999
DATE: 20150102
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
OPB REALTY INC.
Plaintiff
– and –
CANADA INTERNATIONAL MEDICAL SUPPLIERS COMPANY LIMITED, MOURAD HAROUN, GEORGE RISKAS, JOHN DOE 1, JOHN DOE 2, and JOHN DOE 3
Defendants
REASONS FOR DECISION – COSTS
PERELL J.
Released: January 2, 2015