Court File and Parties

Citation: Kitchen v. Silver Heights, 2017 ONSC 4571 Court File No.: C-504-17 Date: 2017-07-27 Superior Court of Justice - Ontario

Re: Michael Frank Kitchen, Plaintiff And: Silver Heights Developments Inc., Defendant

Before: The Honourable Justice G.E. Taylor

Counsel: Joseph Figliomeni, for the Plaintiff Steven D. Gadbois, for the Defendant

Costs Endorsement

[1] The plaintiff’s action for specific performance of an Agreement of Purchase and Sale of a condominium unit was dismissed on a motion for summary judgment. The parties have made written submissions with respect to costs of the motion and the action.

[2] The parties are to be commended for agreeing that the action be determined on a motion for summary judgment. The issues to be decided were relatively straightforward. The action involved the purchase of a condominium for approximately $250,000 and turned on the failure of the plaintiff to pay a third deposit in the approximate amount of $12,000. Although I dismissed the action, I assessed damages at $97,500. Deciding this action by way of a motion for summary judgment was therefore a proportional approach to the resolution of this dispute.

[3] The steps involved in this action were the exchange of pleadings, a motion for a Certificate of Pending Litigation, a motion to change the place of trial to Kitchener and the motion for summary judgment.

[4] The defendant seeks an award of costs on a partial indemnity basis although it only submitted a Bill of Costs totaling approximately $47,750 calculated on a substantial indemnity basis. The plaintiff submits that there should be no costs awarded to the defendant or in the alternative a nominal cost award of $5,000 ought to be made in favour of the defendant.

[5] Rule 57.01 (1) (0.a) of the Rules of Civil Procedure provides that one of the principles in fixing an appropriate amount for costs of a proceeding is the principle of indemnity including the experience of the lawyer, the rates charged and the hours spent. Counsel for the defendant has 24 years of experience but the Bill of Costs does not specify an hourly rate or the amount of time spent in defending this action. It is therefore difficult for me to apply this principle in determining the amount of costs to be paid by the plaintiff to the defendant.

[6] One of the factors relied upon by the plaintiff in support of his submission that there should be no costs or at best a nominal award of costs is that his real estate lawyer did not advise him about the letter dated August 10, 2016 demanding payment of the third deposit. In my view, any issue as between the plaintiff and his real estate lawyer is not something that should affect the costs to which the successful defendant is entitled.

[7] Another important factor pursuant to rule 57.01 (1) (0.b) is the amount that the unsuccessful party could reasonably expect to pay. In my view it is not reasonable that the plaintiff would expect to pay no costs or nominal costs in the event that the action was dismissed.

[8] I am fixing costs, not assessing costs. Taking into consideration the efficient manner in which this action was brought to a conclusion, the complexity of the issues, the principle of indemnity and the fact that the plaintiff must have contemplated bearing responsibility for a reasonable amount of costs if the action was dismissed, I fix the costs of the defendant payable by the plaintiff at $20,000 inclusive of disbursements and HST, payable forthwith.

"G.E. Taylor"

G.E. Taylor, J.

Date: July 27, 2017