2016 ONSC 1010
COURT FILE NO.: CV-15-538084
MOTION HEARD: DECEMBER 4, 2015
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Tribecca Development Corporation
v.
Max Danieli and Danieli Development Group Inc.
BEFORE: MASTER R.A. MUIR
COUNSEL: David M. Golden and Jonathan Levy for the moving party/plaintiff
Fred A. Platt for the responding parties/defendants
SUPPLEMENTARY REASONS FOR DECISION - COSTS
[1] On December 4, 2015 I heard a motion brought by the plaintiff pursuant to section 103 of Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”) and Rule 42.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for an order granting it leave to issue a certificate of pending litigation (“CPL”). I released my reasons for decision on December 7, 2015. I dismissed the plaintiff’s motion and requested written costs submissions. I have now reviewed and considered those submissions.
[2] The defendants seek substantial indemnity costs in the amount of $38,500.00. The defendants’ request for elevated costs is based on certain offers to settle made prior to the return date of the motion. The defendants’ partial indemnity costs are $26,000.00.
[3] The plaintiff argues that partial indemnity costs are appropriate in the circumstances of this motion. It also takes the position that the defendants’ costs are excessive and submit that costs in the amount of $12,000.00 are fair and reasonable in the circumstances.
[4] The court’s general authority to award costs as between parties to litigation is found in section 131(1) of the CJA, which provides that costs are in the discretion of the court. Rule 57.01(1) allows the court to consider the result on the motion and any offer to settle. This Rule also sets out a non-exhaustive list of factors the court may also consider when awarding costs. Rule 1.04(1.1) is also applicable. It requires the court in applying the Rules to make orders that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding.
[5] When dealing with costs, the overall objective for the court is to fix an amount that is fair and reasonable for the unsuccessful party who generally must pay the costs of the successful party. See Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (ON CA), [2002] OJ No. 4495 (CA) at paragraph 4 and Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] OJ No. 2634 (CA) at paragraph 26. In Clarington (Municipality) v. Blue Circle Canada Inc., 2009 ONCA 722 the Court of Appeal stated as follows at paragraph 52:
Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.
[6] These are the factors and principles I have considered and applied in determining the costs issues on this motion.
[7] I see no basis for awarding costs on an elevated scale. All of the defendants’ offers to settle involved a mechanism whereby the plaintiff would be required to pay a portion of the property’s carrying costs and certain payments to trade contractors or those payments would be paid out of the funds being held in trust. Those conditions were key elements of the defendants’ settlement offers. My order of December 7, 2015 simply dismissed the motion for leave to issue the CPL. I declined to make any orders regarding the ongoing financing of the property or payments to trades. The defendants remain responsible for those payments. In my view, the outcome of the motion cannot be seen as a better result than the defendants’ offers to settle.
[8] However, the defendants have been successful on the motion and are entitled to their partial indemnity costs. In my view, the defendants’ costs outline is fair and reasonable in the circumstances. The motion was moderately complex and obviously important to the defendants. It involved the exchange of significant affidavit evidence, several cross-examinations and the preparation of factums. Two court appearances were required. It is true that the defendants’ costs are somewhat higher than the costs set out in the plaintiff’s costs outline. However, I note that a certain amount of time is missing from the plaintiff’s costs outline in respect of cross-examinations and the defendants’ disbursements are higher due to the cost of transcripts. When these factors are taken into account, the parties’ costs are very similar.
[9] I have therefore concluded that it is fair and reasonable for the plaintiff to pay the defendants’ partial indemnity costs of this motion fixed in the amount of $26,000.00, inclusive of HST and disbursements. These costs shall be paid by March 10, 2016.
DATE: February 9, 2016 Master R.A. Muir