CITATION: Hussey v. Angel, 2017 ONSC 4678
COURT FILE NO.: CV11-075-0000
DATE: 20170801
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Roy Taylor Hussey
Julia M. Fischer, for the Plaintiff
Plaintiff
- and -
Cathy Aileen Angel
Douglas A. Grace and Anya Shahabi, for the Defendant
Defendant
HEARD: June 5, 6, 7 & 8, 2017
REASONS FOR DECISION ON COSTS
Conlan J.
I. Introduction
The Claims and the Result after Trial
[1] The Plaintiff, Roy Hussey (“Roy”), and the Defendant, Cathy Angel (“Cathy”), were involved in a relationship for a while.
[2] Cathy, a real estate investor and landlord, owned two properties in Port Elgin, Ontario – 704 Gustavus Street (“704”) and 339 Green Street (“339”).
[3] Cathy agreed to sell those two properties to Roy, all of 704 for $219,900.00 and a fifty per cent interest in 339 for $338,000.00.
[4] On 704, Roy paid a deposit of $10,000.00. On 339, he paid a deposit of $240,000.00.
[5] Neither deal ever closed.
[6] The relationship soured, and there was a physical confrontation between Roy and Cathy in late October 2010.
[7] Roy sued Cathy for the two real estate deals that never closed. Cathy counterclaimed for the alleged assault that occurred in late October 2010.
[8] A short trial was held in Owen Sound in June 2017.
[9] The result after trial is best understood by reference to paragraphs 105 through 111 of the Reasons for Judgment reported at 2017 ONSC 3624.
[105] The Claim is allowed in part, in accordance with these Reasons. Judgment shall issue in favour of Hussey accordingly.
[106] To repeat, specific performance of the two Agreements is ordered, plus $652.72 for damages in favour of Hussey related to the property that was left at 704.
[107] Prejudgment interest, commencing on October 24, 2010, and post-judgment interest shall apply to the monetary damages award.
[108] If counsel require any assistance with the wording of the formal Judgment, regarding specific performance, I may be spoken to.
[109] For clarity, specific performance means that each side shall execute the Agreements as per their terms (that is, close the deals), subject to any necessary adjustments.
[110] The Counterclaim is dismissed.
[111] As the more successful party, Hussey is presumptively entitled to some costs. If counsel cannot settle that issue, I will accept written submissions, each limited to two pages excluding attachments. Hussey shall file by June 30th. Angel shall file by July 14th. No reply is permitted without leave of the Court.
The Positions of the Parties on Costs
[10] The parties have been unable to settle the issue of costs. Written submissions have been filed.
[11] Roy seeks costs on a full indemnity basis in the total amount of $55,424.48 ($50,210.25 for fees and the rest for disbursements).
[12] Cathy suggests that no costs be awarded to either side.
II. Analysis and Conclusion
[13] As the more successful party, Roy is presumptively entitled to some costs.
[14] This is not a case of roughly equally divided success after trial, however, it is a case of mixed success.
[15] Roy’s claim was allowed in part, although only on the basis of the alternative relief sought in closing submissions by his counsel (specific performance). In other words, on the remedy, Cathy’s position (specific performance rather than damages) was accepted by the Court. Cathy’s counterclaim was dismissed entirely.
[16] Consequently, there is no reason to award Roy full indemnity costs, or even substantial indemnity. Discounted partial indemnity costs are appropriate.
[17] Quantum of costs is discretionary. The overriding objective is to make an award that is fair, just and reasonable in all of the circumstances including a consideration of what the more unsuccessful side of the litigation would reasonably expect to pay.
[18] In determining the quantum of costs, I ought to consider Rule 57, in particular, the factors outlined in 57.01(1).
[19] I should also keep in mind the fundamental purposes of modern costs awards: to partially indemnify successful litigants, to encourage settlement, and to discourage inappropriate conduct by litigants.
[20] It is common ground that both sides offered to settle the case before trial, but neither did equal to or better than his/her offer after trial.
[21] Finally, at paragraph 77 of the Reasons for Judgment, the Court indicated that Roy’s counsel could ask that any award of costs made in favour of Roy take into consideration Cathy’s unreasonable conduct as Roy’s landlord at 704.
[22] I have taken that into consideration.
[23] With those parameters in mind, I elect to award costs in favour of Roy in the total amount of $25,000.00.
[24] That figure includes the $5214.23 sought for disbursements, leaving just under $20,000.00 for fees.
[25] On a partial indemnity scale, Roy had sought $38,303.68 for fees. Initially, I was inclined to divide that amount in half to account for the mixed success at trial, but here the quantum awarded for fees is slightly higher than fifty per cent of what was requested in order to address the comments of the Court at paragraph 77 of the Reasons for Judgment.
[26] I order that Cathy pay to Roy the sum of $25,000.00 for costs.
Conlan J.
Released: August 1, 2017
CITATION: Hussey v. Angel, 2017 ONSC 4678
COURT FILE NO.: CV11-075-0000
DATE: 20170801
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Roy Taylor Hussey
Plaintiff
- and -
Cathy Aileen Angel
Defendant
REASONS FOR DECISION ON COSTS
Conlan J.
Released: August 1, 2017