Court File and Parties

COURT FILE NO.: CV-17-0175-00 DATE: 20170508 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 2526716 ONTARIO INC., Plaintiff AND 2014036 ONTARIO LIMITED and 2014037 ONTARIO LIMITED, Defendants

BEFORE: EMERY J.

COUNSEL: Gerard Barosan, for the Plaintiff (responding party) Tracy Nanziri, for the Defendants (moving parties)

HEARD: In writing

COSTS ENDORSEMENT

[1] I have now received written submissions from the plaintiff for successfully opposing the defendant’s motion to set aside the Certificate of Pending Litigation (CPL) granted by Justice Bloom on January 16, 2017. These costs cover the attendance before Justice Donohue on February 28, 2017, and for the attendance to argue the motion before me on March 10, 2017. I have also received the responding submissions on costs from the defendants on which they seek costs for the attendance on February 28, 2017, and to oppose the plaintiff’s claim for the costs incurred on March 10, 2017.

[2] Remarkably, each party devoted most of their submissions to the attendance before Justice Donohue on February 28, 2017.

February 28, 2017

[3] This action has moved along with considerable dispatch since it was commenced by the plaintiff on January 13, 2017.

[4] On January 16, 2017, the plaintiff obtained leave from Justice Bloom to obtain the CPL they have now registered against title to the two properties at issue. This leave was obtained by the plaintiff on a motion brought without notice to the defendants. Service of the order, motion materials and statement of claim followed.

[5] The defendants brought a motion for summary judgment to dismiss the action, and for an order discharging the CPL shortly thereafter. The defendants’ motion was first returnable before Justice Donohue on February 28, 2017 (and not November 29, 2016 as stated in paragraph 37 of my initial Endorsement). Justice Donohue adjourned the motion for summary judgment to April 28, 2017 to be heard as a long motion. However, that part of the motion for an order discharging the CPL was adjourned at the defendants’ request to March 9, 2017. I heard that part of the motion on March 10, 2017. It is the costs for that part of the motion that I am now asked to award costs.

[6] The plaintiff has filed a separate costs outline for the attendance on February 28, 2017 seeking fees of $2,508.60 including HST, plus disbursements in the amount of $285.20. The plaintiff submits that counsel for the defendants did not consult with its own counsel before setting the date for the motion returnable on February 28, 2017. The plaintiff states that the defendants complicated or confused the process by serving two separate motion records, two separate factums and a third separate notice of motion. Each notice of motion served by the defendants specified a different date unilaterally selected by the defendants’ counsel.

[7] The amount claimed by the plaintiff for the February 28, 2017 date covers costs that include time for reviewing those materials, and correspondence with counsel for the defendants. The time claimed also covers the drafting of an affidavit in support of the request to adjourn the defendant’s motion, and the preparation of submissions for and attendance in court to obtain that adjournment.

[8] The defendants also seek costs in the amount of $4,440.00 for the attendance before the court on February 28, 2017. The defendants state that the plaintiff was served with proper notice that February 28, 2017 would be the return date for the motion. The defendants further state that the plaintiff was served with three identical motion records, the only difference being the date on which the defendants proposed the motion would be heard.

[9] The defendants also submit that the plaintiff had filed no material in response to the defendant’s motion by February 28, 2017 when counsel attended before Justice Donohue.

[10] It is the position of the defendants that the February 28, 2017 motion was not adjourned for scheduling purposes. Rather, they state that Justice Donohue considered it fair that the defendants should be given the opportunity to respond to the CPL motion as the plaintiff’s had brought that motion without notice, and that ideally, that motion would be heard before the defendant’s motion for summary judgment. The defendants rely specifically on Justice Donohue’s endorsement that reads “the CPL was obtained without notice [and] is urgently required to be returned and considered by the court.”

[11] I also note that Justice Donohue endorsed the record to reflect that both counsel had been there for two hours to deal with the adjournment and that costs were reserved to the motions judge.

[12] I have insufficient information from the written submissions of the parties to determine what factors under Rule 57.01(1) of the Rules of Civil Procedure might apply to guide my discretion to order costs under section 131(1) of the Courts of Justice Act for the attendance on February 28, 2017. I cannot tell from the written submissions of either party why it took two hours for the parties to obtain an adjournment from Justice Donohue on February 28, 2017. I do not know why counsel for either party did not step up and ask for the adjournment when court opened.

[13] The only information I have to consider for either claim for costs are the costs submissions before me. From those costs submissions I have determined that time claimed by counsel for the defendants to prepare motion materials, and by the plaintiff to review those materials prior to February 28, 2017, is not time properly claimable for the adjournment request. That time is properly carried over to the costs either party might claim or rely upon with respect to the preparation for, and argument of the motion itself on March 10, 2017.

[14] I am of the further view that if I were to grant costs for the attendance before Justice Donohue to obtain the adjournment on February 28, 2017, the only time properly claimable would be one hour for preparation and travel to the court house that day, and the two hours it took counsel before speaking to the adjournment.

[15] Having regard to the conflicting submissions the parties have made in writing, I have determined that it would be neither fair nor just to award costs for the time it took to attend before the court to seek the adjournment on February 28, 2017.

March 10, 2017

[16] The plaintiff was ultimately successful when that part of the defendants’ motion to discharge the CPL was heard on March 10, 2017, and dismissed. There is no reason why the general rule that costs follow the event should not apply here.

[17] The plaintiff seeks costs for the fee component of its claim in the amount of $8,814.00 on a partial indemnity basis, and disbursements in the amount of $616.10.

[18] The defendants state that if the plaintiff had brought the motion resulting in the order made by Justice Bloom on January 16, 2017 on notice to the defendants, no further attendances would have been necessary.

[19] The defendants also state that they were under considerable time pressure to have that part of the motion seeking a discharge of the CPL heard because of “a prospective purchaser who was interested in the subject property, and discharging the CPL was paramount”.

[20] The plaintiff submits that the materials relied upon in support of the original motion before Justice Bloom were insufficient to respond fully to the defendants’ materials on the motion to discharge the CPL. The plaintiff further states that new developments had taken place in connection with the approval process to rehabilitate the lands after January 16, 2017 that were relevant to the issues before the court. These facts are marshalled to advance the argument that the evidence heard by the court on March 10, 2017 was either not known or not available as a matter of first instance on January 16, 2017.

[21] Now that the plaintiff has prevailed on the defendants motion to discharge the CPL, it is clear that the plaintiff would have achieved success had the motion on January 16, 2017 been brought on notice. The plaintiff would likely have made a claim for costs at that time. Whether the claim for costs was made then or is made now, the plaintiff shall have its costs on the motion for preserving its CPL.

[22] It is a foundational principle in the law of costs that any award must be fair and reasonable. A measure of what would be fair and reasonable is the amount for costs that the unsuccessful party could or should expect to the court to award against them.

[23] I find the amount claimed for partial indemnity costs by the defendants in the costs outline for February 28, 2017 that was carried over to the motion, together with the defendant’s costs outline for March 10, 2017 provides a reasonable basis on which to determine the amount of costs the defendants could have expected to pay. This basis is therefore a good measure for the costs the plaintiff should be awarded up to that date.

[24] Costs of the motion regarding the CPL are therefore awarded on a partial indemnity basis to the plaintiff 2526716 Ontario Inc. in the amount of $5,000, plus $1,500 for a counsel fee to attend and argue the motion on March 10, 2017 inclusive of HST. Disbursements in the amount of $616.10 shall be added to bring the total award to $7,116.10. This amount is payable forthwith by the defendants, jointly and severally.

Emery J DATE: May 8, 2017