Court File and Parties

CITATION: 90 Nolan Court Inc. v. 6592503 Canada Inc., 2016 ONSC 1091

COURT FILE NO.: CV-13-473605

DATE: 20160217

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 90 Nolan Court Inc., Plaintiff

AND:

6592503 Canada Inc. carrying on business as RMDS (Regal Metal Door & Supplies) and Unimac Construction Inc., Defendants

BEFORE: Carole J. Brown, J.

COUNSEL: Aleksander Jovanovic and Rebecca Ying, for the Plaintiff

Newton Wong and Jesmond Wong, for the Defendants

COSTS ENDORSEMENT

[1] The plaintiff, which was wholly successful in recovering damages and costs in this three-day trial, and in defending the defendants' counterclaim, seeks it costs on a partial indemnity basis to delivery of an Offer to Settle dated March 27, 2015, and on a substantial indemnity basis thereafter, in the total amount is $36,102.54.

[2] The defendant failed to provide any submissions as regards costs within the time stipulated in the judgment and thereafter.

[3] The plaintiff submits that a Rule 49 Offer to Settle was served on the defendants on March 27, 2015, which was less than the award of damages granted to the plaintiff at trial, taking into account prejudgment interest as stipulated in the subject lease. As a result, it argues that damages to March 27, 2015 be granted on a partial indemnity basis, and after March 27, 2015, on a substantial indemnity basis pursuant to the Rules.

[4] The plaintiff further urges that this Court consider that the defendant provided a blanket denial to 90 Nolan Court's Request to Admit, which prolonged the duration of trial, and required the plaintiff to prove issues that should have been admitted, as an example, that it was the owner of the property which was the subject of the lease. Further, it failed to deliver a statement of issues or attend at the mediation; did not attend the pretrial and was not available by telephone, frustrating any possibility of resolution at that juncture. The plaintiff further submits that the defendant advanced a counterclaim in the amount of $200,000 plus punitive damages of $50,000, further lengthening the duration of the proceedings, but did not seriously pursue the counterclaim at trial. Nevertheless, as a result, the plaintiff was required to produce the evidence of one additional witness regarding the counterclaim.

[5] I have reviewed the submissions of the plaintiff and the evidence adduced. I am satisfied, given the Offer to Settle, that the plaintiff is entitled to its costs to March 27, 2015 on a partial indemnity basis and, thereafter, on a substantial indemnity basis. The defendants will pay to the plaintiff costs in the amount of $36,102.54, which I find to be reasonable for a three-day trial, in all the circumstances.

[6] The plaintiff has also requested that I make an order releasing the amount of $23,000 paid by the plaintiff into court which is currently held as security for costs. I order that the amount of $23,000 paid into court by the plaintiff be paid out of court to Torkin Manes LLP in Trust for 90 Nolan Court Inc.

Carole J. Brown, J.

Date: February 17, 2016