Court File and Parties
CITATION: 1502 Lakeshore Oakville Holdings v. Halton Standard Condominium Corporation No. 634, 2016 ONSC 7778
COURT FILE NO.: CV-16-558688
DATE: 20161212
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 1502 Lakeshore Oakville Holdings Inc., Plaintiff
AND:
Halton Standard Condominium Corporation No. 634 and Dove Square Property Management Inc., Defendants
BEFORE: Mr. Justice S.E. Firestone
COUNSEL: William Chalmers, for the Plaintiff
Carol A. Dirks, for the Defendants
HEARD: In Writing
Endorsement
[1] On August 17, 2016, the plaintiff 1502 Lakeshore Oakville Holdings Inc. (“1502”) brought an urgent motion for injunctive relief on short notice requesting the following relief:
An order, nunc pro tunc, abridging the time for service and filing of the motion materials as well as an order nunc pro tunc validating service and adding the motion to the Court’s list of urgent motions.
An interim and Interlocutory mandatory order requiring the defendants, Halton Standard Condominium Corporation No. 634 and Dove Square Property Management Inc. (“HSCC”) to reconnect the electricity to the Groundskeepers Cottage (the “cottage”) on the property of 1502.
An interim and interlocutory permanent injunction restraining HSCC from disconnecting the electricity to the cottage.
Costs on a substantial, or, alternatively, partial indemnity basis payable forthwith by 1502.
[2] This matter was heard by me on August 17, 2016 by way of a case conference (chambers appointment) pursuant to Rule 50.13. At the chambers appointment the parties agreed to a consent order with terms whereby HSCC was to forthwith take all necessary steps to restore power to the cottage by reconnecting to its electrical panel on an interim basis. The order provided that if there were any outstanding substantive issues the balance of the motion could be dealt with by further attendance on a date to be set.
[3] The order further provided that if the only outstanding issue is costs of the motion, that issue would be determined by me. The parties have been unable to agree on the issue of costs. I have been provided with the parties costs submissions in accordance with the agreed to timetable.
[4] 1502 seeks costs on a substantial indemnity basis in the amount of $39,372.40 inclusive of fees, disbursements and HST. HSCC argues that the costs sought by 1502 are excessive and that each party should bear their own costs of the motion. Alternatively HSCC submits that if 1502 is entitled to costs of the motion such amount should not exceed $5,000.00 for fees, plus HST and disbursements of $645.13.
[5] Costs are within the discretion of the Court: Courts of Justice Act, R.S.O. 1990, c.C.43, s. 131(1). This court has broad discretion when determining the issue of costs based on the factors set forth under Rule 57.01(1).
[6] The court’s overall objective in fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v. Public Accountants Council for Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. 291 (C.A.).
[7] In Agius v. Home Depot Holdings Inc; 2011 ONSC 5272, the court confirmed that the fixing of costs is not merely a mechanical exercise in reviewing and receiving a party’s cost outline.
[8] In Yelda v. Vu, 2013 ONSC 5903 (leave to appeal denied), 2014 ONCA 353, the Court confirms the principle that a successful party is entitled to costs unless there is a good reason not to award them such as misconduct of the party, miscarriage and procedure, or oppressive or vexatious conduct of proceedings.
[9] I have reviewed and considered the cost submissions of counsel as well as the applicable relevant legal principles and their application to the factual matrix of this case. Based on the communications which took place between the parties prior to the hearing of this matter I am satisfied that it was reasonable for 1502 to have brought this motion for interim relief. It was at the hearing of this matter that the parties were able for the first time to reach a consent agreement.
[10] I agree with counsel for the defendant that this was not a complicated matter and that costs payable on a substantial indemnity basis are not warranted. I further accept that there is some duplication of effort and that the costs sought are excessive.
[11] I fix costs in the sum of $9,995.00 all-inclusive payable by HSCC to 1502 to be paid within 30 days.
Firestone J.
Date: December 12, 2016