Court File and Parties
CITATION: LIXO Investments Limited v. FCHT Holdings, 2016 ONSC 3954
COURT FILE NO.: CV-15-534007
DATE: 20160615
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LIXO INVESTMENTS LIMITED Applicant
– and –
FCHT HOLDINGS (ONTARIO) CORPORATION, PRIESTLY DEMOLITION INC., TRAUGOTT BUILDING CONTRACTORS INC., CITY OF TORONTO and ANN BOROOAH, IN HER CAPACITY AS CHIEF BUILDING OFFICIAL Respondents
COUNSEL:
Peter-Paul E. Du Vernet for the Applicant
Molly M. Reynolds and Eliot Che for FCHT Holdings (Ontario) Corporation
HEARD: Written Submissions
COSTS ENDORSEMENT
DIAMOND J.:
[1] In my Endorsement released on May 10, 2016, I dismissed part of the application brought by Lixo Investments Limited (“Lixo”), and converted the balance of the application into an action pursuant to Rule 38.01(1)(b). Absent an agreement between the parties, I asked for costs submissions to be exchanged and filed with my assistant. I have now received and reviewed those costs submissions.
[2] Typically, costs ought to follow the event. Unfortunately, the parties disagree as to both the nature and scope of the “event”.
[3] In summary, the respondent FCHT Holdings (Ontario) Corporation (“FCHT”) submits that it was substantially successful in opposing Lixo’s application, and as such it ought to be awarded 83% of its partial indemnity costs incurred to date. The 83% figure was proposed by FCHT as a reflection of what it claims to be the value of the dismissed portion of Lixo’s damages claim as a result of my disposition of Issue #1 in my said Endorsement.
[4] Lixo disputes that my disposition of Issue #1 resulted in a dismissal of a majority of its claim, and submits that the costs of the proceeding to date be either reserved to the judge hearing the trial of the action, or be limited to steps taken since December 2015, as it was within Lixo’s reasonable expectation to be potentially liable for those specific costs.
[5] As always, I am mindful that the Court is required to consider what is “fair and reasonable” in fixing costs with a view to balancing compensation of a successful party with a goal of fostering access of justice: Boucher v. Public Accountants Council (Ontario) 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).
[6] Pursuant to Rule 57.01 of the Rules of Civil Procedure, the Court may consider the following factors when exercising its discretion to award costs:
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and
(i) any other matter relevant to the question of costs.
[7] I agree with FCHT that, to the extent possible, the costs relating to the disposition of Issue #1 ought to be determined by me at this stage, with the balance of the costs relating to Issue #2 reserved to the judge hearing the trial of the action.
[8] That said, I do not find that my disposition of Issue #1 resulted in a dismissal of the “majority of the issues raised by Lixo”. Most of the material facts raised by both parties are intertwined between both issues. I do not agree with FCHT’s proposed 83% figure, as the determination of Issue #2 by the trial judge may well result in a damages award that exceeds FCHT’s current prediction.
[9] I do agree with FCHT that much of the costs associated with the various interim steps leading up to the hearing before me ought to lay at the feet of Lixo. In reviewing the history of this proceeding, I find that the scope, theory of the case and relief sought by Lixo seemed to change and expand as the proceeding continued. On occasion, it appeared that FCHT was facing a “moving target”.
[10] While I agree with FCHT that, for the most part, it defended the application in a cost effective way through the efforts of two associates, some of the hours docketed by those associates seem excessive, especially the hours spent preparing and attending for two relatively brief cross-examinations.
[11] In the circumstances of this case, I believe that FCHT ought to be awarded its costs incurred to date relating to the time spent dealing with and responding to Issue #1. Having regard to the results achieved, the reasonable expectations of the parties, and the hours claimed by FCHT, I believe it to be a just and fair result to award FCHT those specific costs in the all-inclusive amount of $65,000.00 payable by Lixo forthwith.
[12] Costs relating to the disposition of Issue #2 are reserved to the trial judge.
Diamond J.
Released: June 15, 2016
CITATION: LIXO Investments Limited v. FCHT Holdings, 2016 ONSC 3954
COURT FILE NO.: CV-15-534007
DATE: 20160615
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LIXO INVESTMENTS LIMITED Applicant
– and –
FCHT HOLDINGS (ONTARIO) CORPORATION, PRIESTLY DEMOLITION INC., TRAUGOTT BUILDING CONTRACTORS INC., CITY OF TORONTO and ANN BOROOAH, IN HER CAPACITY AS CHIEF BUILDING OFFICIAL Respondents
COSTS ENDORSEMENT
Diamond J.
Released: June 15, 2016