CITATION: Williams Estate v. Carleton Condominium Corporation No.66, 2016 ONSC 786
COURT FILE NO.: 11-53224
DATE: February 2, 2016
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LISE MAYRAND, Executrix of the Estate of GEORGE WILLIAMS, Deceased
Plaintiff(Respondent)
– and –
CARLETON CONDOMINIUM CORPOARTION NO.66
Defendant(Moving Party)
Rodrigue Escayola, for the Plaintiff(Respondent)
R. Bruce Nelson, for the Defendant(Moving Party)
HEARD: By Written Submissions
Beaudoin J.
costs decision
[1] On December 4, 2015, I dismissed the Defendant/Moving Party’s (CCC 66’s) motion for leave to appeal the Order of Justice Maranger allowing the Plaintiff/Respondent (Mayrand) to amend her Statement of Claim.
[2] This action involves claims with respect to ongoing and repeated water infiltrations in Mayrand’s condominium unit since 2009. In dismissing the motion for leave to appeal, I concluded that there was no reason to doubt the correctness of the motion judge’s decision and that he had exercised his discretion appropriately.
[3] Mayrand, who had made an offer to settle, now seeks fees in the amount of $8175 on a substantial indemnity basis since the date of her offer plus disbursements and taxes for a total amount of $9385.
[4] She relies on section 131 of the Courts of Justice Act and the factors enumerated under Rule 57. Specifically, she invites me to consider her offer to settle dated October 5, 2015 which provided for the dismissal of the motion for leave to appeal with costs on a partial indemnity basis until the date of the offer, and on a substantial indemnity basis thereafter. Mayrand submits that she successfully beat her offer to settle and that she should have the benefit from that offer.
[5] Mayrand notes that she was denied costs of the motion to amend her pleading on the basis that the motion was brought late in the day and she argues that she should not be denied the costs of this motion for leave to appeal as she has now has had to argue twice with respect to the merits of her request to amend her pleadings.
[6] She also claims she should be indemnified especially in light of the financial inequities between the parties; a condominium owner should not have to fight her condominium corporation to get it to stop water infiltrations into her unit. The matter was of utmost importance to her as the ongoing problems affected her home and her ability to occupy it. Had she not been successful on the motion, her claims would have been limited to substantially lower damages.
[7] She submits that the hours spent in preparation for the motion were reasonable and that this was a motion of median complexity. Mayrand’s counsel has 15 years’ experience with an emphasis in condominium matters.
[8] CCC 66 argues that the amount of costs sought by Mayrand does not fall within the range of costs that an unsuccessful party could reasonably have expected to pay and cites the decision in Brown v. Hudson’s Bay Company, 2014 ONSC 5079 where the Divisional Court noted that costs in the range of $3500-$5000 is representative of the range of costs normally awarded to a successful respondent on a motion for leave to appeal.
[9] CCC 66 submits that the offer to settle was not so substantial as to attract a consideration of an award of substantial indemnity costs and relies on Chatterson v. M & M Meat Shops Ltd, 2013 ONSC 2842 where the Court found that an offer to dismiss a motion without costs did not constitute a substantial offer to attract consideration for an award of substantial indemnity costs.
[10] Having regard to the factors enumerated in Rule 57.01 of the Rules of Civil Procedure, CCC 66 does not disagree that the motion for leave to appeal was one of median complexity. CCC 66 submits that the motion nevertheless involved matters of importance for itself in that additional pleadings must now be exchanged and further affidavits of documents and examinations for discovery will be required.
[11] CCC 66 submits that neither party has behaved improperly and that it has not acted unnecessarily nor engaged in any unreasonable conduct that would justify an award for costs on a substantial indemnity basis. It argues that Mayrand was not required to argue the merits of the request to amend her pleadings twice. The issue before me was simply whether or not leave to appeal should be granted. CCC 66 further submits that any financial inequities between the parties is completely irrelevant for the purposes of determining the cost of the motion and concludes that a total cost award in favour of Mayrand in the amount of $4500 would be appropriate in the circumstances.
Analysis and Conclusion
[12] CCC 66 recognizes Mayrand’s entitlement to costs; the only issue here is the quantum and scale. Even where an offer to settle does not necessarily trigger the consequences set out in Rule 49.10, an offer to settle is an important factor in Rule 57.01(1).
[13] In this case, Mayrand made a reasonable offer. She had to respond to a motion for leave to appeal and she was successful. I concluded that the case cited by CCC 66 was not a conflicting decision and that not all claims are subject to mandatory arbitration under the Condominium Act.
[14] The hourly rates and time spent by her counsel are reasonable, and while CCC6 argues that costs claimed are too high, it has not disclosed its own counsels’ dockets which are the best indication of a party’s expectation. As set out in Risorto v. State Farm Mutual Automobile Insurance Co. (2003) 2003 CanLII 43566 (ON SC), 64, O.R. (3rd)135 (S.C.) this is “no more than an attack in the air.”
[15] While the financial disparity between the parties is not an enumerated factor under Rule 57.01, it may nevertheless be a consideration under Rule 57.01(1)(i) “as any other matter relevant to the question of costs.”
[16] Mayrand received no order for costs before the motions judge. She should not be further penalized as she seeks redress for problems with her home. In all the circumstances, I award her costs in the global amount of $7000, payable forthwith.
Mr. Justice Robert N. Beaudoin
Released: February 2, 2106
CITATION: Williams Estate v. Carleton Condominium Corporation No.66, 2016 ONSC 786
COURT FILE NO.: 11-53224
DATE: 20160202
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LISE MAYRAND, Executrix of the Estate of GEORGE WILLIAMS, Deceased
Plaintiff (Respondent)
– and –
CARLETON CONDOMINIUM CORPOARTION NO.66
Defendant (Moving Party)
costs decision
Beaudoin J.
Released: February 2, 2016