CITATION: Bridgmount Development v Tarion Warranty Corp, 2017 ONSC 6755

COURT FILE NO.: CV-17-577266

DATE: 20171109

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BRIDGMOUNT DEVELOPMENT AND CONSTRUCTION LTD., GLENN BRIDGMOHAN, and NATASHA BRIDGMOHAN, Plaintiffs

– AND –

TARION WARRANTY CORPORATION, NEERAJ GHAI and KARTIKA MALIK, VISAVI CONSULTING & MANAGEMENT LTD., ASHOK MALIK, and YOUR CHOICE REALTY CORPORATION, Defendants

BEFORE: Justice E.M. Morgan

COUNSEL: Christine Kellawan, for the Plaintiffs (Responding Parties)

Jayson Thomas, for the Defendants, Neeraj Ghai and Kartika Malik (Moving parties)

HEARD: Costs submissions in writing

COSTS ENDORSEMENT

[1] On October 19, 2017 I released my decision in this motion. The Defendants, Neeraj Ghai and Kartika Malik (the “Moving Parties”), had moved under Rule 21 to strike out the claim against them. That involved arguing against a large number of causes of action brought by the Plaintiffs. For the most part, the Moving Parties were unsuccessful. They succeeded in striking one cause of action – a claim for ‘denial of access’ to the property in question in the dispute – but their challenge to the balance of the Plaintiffs’ claims was dismissed.

[2] The Moving Parties’ motion was wide ranging and thoroughly researched by both sides. The Moving Parties were, of course, within their rights in bringing the motion, and the Plaintiffs were, of course, within their rights in responding vigorously. Both counsel did a respectable job. It is therefore not a case for costs to be awarded on a substantial indemnity scale. The result gave the Plaintiffs an almost-but-not-quite complete victory, and so they deserve almost but not quite all of the costs they incurred on a partial indemnity scale.

[3] Costs are discretionary under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure, with an overall view to determining “a fair and reasonable amount that should be paid by the unsuccessful party”: Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] OJ No 4495, at para 4 (CA).

[4] Plaintiffs’ counsel has submitted a Costs Outline seeking an all-inclusive amount of $6,928.39 on a partial indemnity scale. Taking into account the complexity of the proceeding [Rule 57.01(1)(c)] and the importance of the motion to the Plaintiffs’ overall claim [Rule 5701(1)(d)], that request is, if anything, a modest one. The Plaintiffs faced a challenge to each and every one of their various claims against the Moving Parties, and were compelled to respond to a complicated series of legal arguments that threatened to derail their entire action.

[5] Given the limited size of the Plaintiffs’ costs request, I am not inclined to second guess Plaintiffs’ counsel on the number of hours or the number of lawyers working on the file. In his submissions, counsel for the Moving Parties suggested that Plaintiffs’ counsel over-staffed the file, but in my view this is not borne out by the Costs Outline and the results obtained in the motion. Whatever time and effort Plaintiffs’ counsel invested in this motion paid off in a mostly successful result and did not give rise to an excessively high costs bill.

[6] Since the Plaintiffs were not entirely successful in their response to the motion, I am mandated under Rule 57.01(1)(b) to apportion the costs award in accordance with this partial success. I will therefore exercise my discretion to discount Plaintiffs’ counsel’s request by $1,000 in order to reflect the one cause of action which they were not able to preserve.

[7] The Moving Parties shall pay the Plaintiffs costs in the amount of $5,900, inclusive of all fees, disbursements and HST.

Morgan J.

Date: November 9, 2017