CITATION: Toronto (City) v. Tseng, 2016 ONSC 4150
COURT FILE NO.: CV-14-511877
DATE: 20160622
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: City of toronto and ANN BOROOAH, CHIEF BUILDING OFFICIAL for the CITY OF TORONTO, Applicants
AND:
PAULINE TSENG, SHIH DRUM TSENG and YANG FENG TSENG, Respondents
BEFORE: Stinson J.
COUNSEL: Mark Siboni and Christopher J. Henderson, for the applicants
Pauline Tseng, Shih Drum Tseng and Yang Feng Tseng, appearing in person
HEARD: By written submissions, at Toronto.
COSTS ENDORSEMENT
[1] In my Reasons for Judgment released August 7, 2015, I granted the City’s application to carry out an inspection of the residential property owned by the respondents. The purpose of the application was to allow the City to satisfy itself that the construction of a two storey addition to the house was compliant with the Building Code and the building permit and plans filed with the City. The parties subsequently made written submissions as to costs. This endorsement addresses those submissions.
[2] The City has filed a Bill of Costs and supporting documents supporting that a claim for substantial indemnity costs of $46,654.22. However, the City seeks a costs award in the all-inclusive sum of $20,000, only.
Liability for costs
[3] The City was the successful party. As the successful party, ordinarily the City would be entitled to an award of costs.
[4] The respondents submit, however, that the City was unsuccessful in obtaining 10 of the 13 court orders it requested in its Notice of Application. They submit that, prior to this case, there was no legal precedent for the relief sought by the City.
[5] In my view, the respondents’ position mischaracterizes the City’s application. In the first instance, the City’s concern was to inspect and satisfy itself that the addition constructed by the respondents was, as built, safe and compliant with the building permit and plans that ultimately were submitted. The construction had been carried out by the respondents prior to applying for a building permit. Before me, the City was successful in obtaining the necessary orders for inspection. The remaining relief sought by the City (e.g. eviction, demolition, etc.) would only be necessary if the inspection revealed some sort of defect that required that kind of remedy; at this stage it is unnecessary.
[6] It was entirely appropriate for the City to seek the broad relief requested. Indeed, it is understandable that the remedy sought was cast in such a fashion, since – depending on the outcome of the inspections – that additional relief may be necessary. The fact that such relief was not granted because it is not required - so far, at least - does not detract from the fact that the City obtained the basic remedy it sought: an order for inspection to satisfy itself that the construction was compliant.
[7] In light of the outcome, as the successful party the City is entitled to an award of costs.
Scale of costs
[8] As mentioned above, the submissions of the City included a Bill of Costs setting out substantial indemnity fees of almost $46,000. It also included a calculation of partial indemnity costs of $30,665.
[9] Ordinarily, an award of costs is made on a partial indemnity basis. Departure from that standard award is warranted only in rare and exceptional cases, such as where a party is guilty of conduct worthy of censure either in the events leading up to the litigation or in the course of litigation itself.
[10] Despite the circumstances leading up to this application, the City is not seeking costs on a substantial indemnity scale. Rather, it is seeking costs on a partial indemnity scale and at that for a sum that is significantly lower than its partial indemnity bill of costs.
[11] I will therefore proceed to assess the City’s costs on a partial indemnity scale, only.
Quantum of costs
[12] As noted, the partial indemnity costs disclosed on the City’s Bill of Costs total $30,665, but the City is seeking an award for less than two thirds of that sum, $20,000.
[13] In determining whether the costs award sought is warranted, or if a lower sum should be awarded, I would give particular consideration to the following factors:
Success in the hearing – The City obtain the relief necessary to provide it with the authority of a Court order to conduct the inspections required to determine if the addition was constructed in accordance with the applicable plans and building permit. In this sense, the City was fully successful. Whether any further relief will be necessary will depend on the outcome of the inspections I have ordered. None of the arguments advanced by the respondents at the hearing was successful.
Complexity of the proceeding - I would describe the City’s application as a matter of moderate complexity. It was made more so by the arguments advanced by the respondents, which arguments were rejected.
Importance of the issues - The issues were important. The City has been attempting for some time to satisfy itself that the addition has been properly constructed. Ensuring compliance with City building practices and the Building Code is an important public duty.
Causes of the length of the proceedings - The proceedings were lengthened unnecessarily by the conduct of the respondents. They failed to comply with the timetable that had been set many months earlier, necessitating an adjournment of the original hearing date. They again failed to serve any responding materials until the adjourned hearing date and then presented them during the course of their submissions. The arguments for which the respondents contended with respect to the interpretation and application of the remedy sections of the Building Code Act had no support in authority. The respondents must therefore accept responsibility for the hearing being more lengthy than otherwise might have been the case. As well, the respondents forced the City to involve new counsel in the application hearing by reason of an unwarranted complaint regarding the conduct of previous counsel. In a pragmatic step – in order to have the matter proceed expeditiously - previous counsel stood aside. The respondents have only themselves to blame for making unsupported allegations that had the result of increasing the City’s costs.
[14] In the final analysis, the basic premise of an order for costs is to award a sum that is fair and reasonable to both sides and within the reasonable expectations of the losing party. The respondents are no strangers to litigation or to adverse costs awards. They are well aware that litigation costs can mount, especially where parties fail to cooperate or take unreasonable positions. In my view that is what occurred here. The respondents should therefore have reasonably anticipated that they risked being on the wrong end of a sizable costs award.
[15] In my view, the amount of time spent and the costs incurred by the City are fair and reasonable. The amount sought is even more reasonable, in light of the City’s decision to discount its claim by over $10,000.
[16] I therefore fix the City costs at the all-inclusive sum of $20,000.
___________________________ Stinson J.
Released: June 21, 2016