1728318 Ontario Inc. v. Penetanguishene (Town)

CITATION: 1728318 Ontario Inc. v. Penetanguishene (Town), 2016 ONSC 4801

COURT FILE NO.: CV-14-1371-SR

DATE: 20160726

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 1728318 Ontario Inc., Plaintiff

AND:

The Corporation of the Town of Penetanguishene, Defendant

BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN

COUNSEL: M.J. Prost, Counsel for the Plaintiff J.E. Biggar, Counsel for the Defendant

HEARD: By written submissions

COSTS ENDORSEMENT

[1] The defendant the Corporation of the Town of Penetanguishene (the Town) achieved partial success in its summary judgment motion against the plaintiff 1728318 Ontario Inc. (172). However, the Town’s success was limited. Its summary judgment motion dismissing the plaintiff’s claim for declaratory relief was granted. However, its motion for partial summary judgment on the damages claimed was dismissed.

[2] Both sides now seek costs. The moving party, the defendant Town, seeks costs of $4,000. The responding party, the plaintiff 172, seeks costs of $5,342.

Offer to Settle

[3] Before discussing the issue of costs it is important to note that there was an Offer to Settle submitted by 172, the responding party. The Offer to Settle was dated March 18, 2016. 172 offered to settle the matter on the following bases:

1. The plaintiff shall withdraw any claim for declaratory relief with respect to the heritage building designation being the claims in paragraphs 1(b) and (c) of the Statement of Claim without costs.

[4] This was the very relief that 172 achieved in this matter.

[5] The second aspect of the offer was as follows:

2. The remaining relief claimed in this motion shall be dismissed.

[6] The plaintiff, 172, also achieved this on the motion.

[7] This matter proceeded by way of the summary judgment rules. Had the Town achieved success in its request for “partial” summary judgment a trial would still have been required for the remaining issues.

[8] The Offer to Settle submitted by 172 provided the Town with a significant opportunity to resolve some issues without costs so that the remaining issues could proceed to a summary judgment trial. In my view, 172 is entitled to costs on a partial indemnity basis after its Offer to Settle, and the Town as the moving party is entitled to costs to the date of the offer. I have considered the costs submissions of both parties and I am satisfied that the time spend and disbursements incurred and hourly rates are reasonable. I therefore fix costs for the moving party, the Town of Penetanguishene at $1,500 all-inclusive and I fix costs for the plaintiff 1728318 Ontario Inc. at $4,000 all-inclusive. In the result on a net basis there shall be a costs award in favour of the plaintiff 1728318 Ontario Inc. of $2,500 all-inclusive.

MULLIGAN J.

Date: July 26, 2016