Smiles First Corporation v. 2377087 Ontario Ltd., 2017 ONSC 5081
CITATION: Smiles First Corporation v. 2377087 Ontario Ltd., 2017 ONSC 5081
COURT FILE NO.: CV-17-572631
DATE: 20170825
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SMILES FIRST CORPORATION and UNION HEALTH AND DENTAL CENTRE, Applicants
AND:
2377087 ONTARIO LIMITED o/a INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES DISTRICT COUNCIL No. 46, JOE RUSSO, 2445855 ONTARIO INC. and FRANK CUNDARI, Respondents
BEFORE: Mr. Justice P.J. Cavanagh
COUNSEL: T. Walker and M. Boire, for the Applicants A. Huggins and R. Nobleman, for the Respondents
HEARD: Submissions in Writing
COSTS ENDORSEMENT
[1] The Respondent 2377087 Ontario Inc. o/a International Union of Painters and Allied Trades District Council No. 46 ("237") was successful on this application.
[2] 237 submits that costs of the application should be awarded to it on a partial indemnity scale in the amount of $48,846.92 inclusive of applicable taxes and disbursements. 237 submits that the costs requested are fair and reasonable and represent an amount which the Applicants could reasonably be expected to pay, if they were unsuccessful. 237 submits that the application raised a variety of complex, law and statutory commercial tenancy issues. In addition, 237 submits that the conduct of the Applicants increased the quantum of costs.
[3] The Applicants submit that, in accordance with the decision of the Court of Appeal for Ontario in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291, the guiding objective for the court when deciding costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant. The Applicant submit that they had prepared a Bill of Costs to be submitted that the hearing of the application in an amount, on a partial indemnity scale, of $27,075.28 inclusive of disbursements and HST. They submit that an award of partial indemnity costs of $27,000 represents a fair and reasonable amount of costs that the applicants could reasonably have expected to pay in this application as the unsuccessful litigant. They deny that 237 incurred unnecessary costs as a result of steps taken by the Applicants which are alleged to have been improper or unnecessary.
[4] I accept the submissions of counsel for 237 that this application raised a number of complex issues relating to commercial tenancies, and that there was significant effort expended by the parties to address these issues between the time the Notice of Application was issued on April 4, 2017 and the return of the application on May 12, 2017.
[5] I have reviewed the bill of costs submitted by 237 and the bill of costs included in the costs submissions of the Applicants. The difference in the amount of fees in each bill of costs seems to be based largely on differences in the hourly rates applied to the time expended. There is also a difference in the disbursements listed in each bill of costs that accounts for some of the difference in the total amounts reflected in each bill of costs.
[6] I regard the hourly rates used by 237 on a partial indemnity scale to be somewhat higher than would be reasonable for the Applicants to pay for this case, and I would reduce the rates by approximately 15 per cent. I regard the amount of time expended by counsel for 237 to be reasonable and within the range of what the applicants would have expected. I do not make any finding that there was any conduct by the Applicants that affects the amount of costs to be awarded.
[7] When I consider the principles in Boucher and the factors in rule 57.01(1) of the Rules of Civil Procedure, I fix costs in the aggregate amount of $42,047.70, comprised of fees of $33,000, disbursements of $4,210.35 and HST of $4,837.35. This includes time spent after the release of the decision to review it, prepare the formal order, and prepare costs submissions.
Cavanagh J.
Date: August 25, 2017