D.L.G. & Associates Ltd. v. Minto Properties Inc., 2015 ONSC 671
COURT FILE NO.: CV-13-484855
DATE: 20150129
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
D.L.G. & ASSOCIATES LTD.
Plaintiff
– and –
MINTO PROPERTIES INC.
Defendant
Gerard Barosan for the Plaintiff
Adam Grant for the Defendant
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] The Plaintiff, D.L.G. & ASSOCIATES LTD. (“DLG”), which operated a franchised restaurant, was a former commercial tenant of the Defendant, Minto Properties Inc. (“Minto”). In this action, DLG alleges that it was induced to enter into its lease because of Minto’s fraudulent misrepresentations about the state of the plumbing in Minto’s mixed residential and commercial complex.
[2] By way of a summary judgment motion that was converted into a motion under Rule 21 of the Rules of Civil Procedure, Minto moved to have DLG’s Amended Statement of Claim struck out and its action dismissed.
[3] I granted Minto’s motion in part. DLG’s claims for breach of contract, negligence, and negligent misrepresentation were struck, but I granted leave to DLG to deliver a Fresh as Amended Statement of Claim to plead a claim in fraudulent misrepresentation. See: D.L.G. & Associates Ltd. v. Minto Properties Inc., 2014 ONSC 7287.
[4] Minto submits that it was entirely successful on the motion and, therefore, should receive its partial indemnity costs of $10,927.37, all inclusive.
[5] DLG submits that given that the action is continuing, success was divided and the motion raised a novel issue about the scope of exculpatory provisions, this is an appropriate case for each party to bear its own costs.
[6] My own assessment is that Minto was the substantially but not totally successful party; hence, my decision allowing Minto’s motion in part.
[7] In my opinion, in all the circumstances of this case, including how the motion came to be a Rule 21 motion, the appropriate and fair way to resolve Minto’s claim for costs, which in quantum is reasonable, and at the same time to take into account that DLG may ultimately be successful on the claim that was not struck out and that will be proceeding, is to award Minto its costs, as claimed, but to make $6,000 payable forthwith with the balance payable to Minto in the cause.
[8] Order accordingly.
Perell, J.
Released: January 29, 2015
CITATION: D.L.G. & Associates Ltd. v. Minto Properties Inc., 2015 ONSC 671
COURT FILE NO.: CV-13-484855
DATE: 20150129
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
D.L.G. & ASSOCIATES LTD.
Plaintiff
– and –
MINTO PROPERTIES INC.
Defendant
REASONS FOR DECISION – COSTS
PERELL J.
Released: January 29, 2015