58 Cardill Inc. v. Rathcliffe Holdings Limited, 2017 ONSC 7545

CITATION: 58 Cardill Inc. v. Rathcliffe Holdings Limited, 2017 ONSC 7545

COURT FILE NO.: CV-575043

DATE: 20171215

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 58 CARDILL INC., Applicant

AND:

RATHCLIFFE HOLDINGS LIMITED, Respondent

BEFORE: Sanfilippo J.

COUNSEL: Richard Worsfold, for the Applicant

Robert S. Choi, for the Respondent

HEARD: In writing

REASONS FOR DECISION ON COSTS

A. Overview

[1] In Reasons for Decision issued November 15, 2017, counsel were invited to deliver written submissions on the issue of costs, in the event that they were not able to agree upon this issue arising from the determination of this application: paras. 52-53. Counsel have now delivered written submissions that have been considered. In addition, counsel were invited to arrange for a Chambers appointment in the event that they were not able to agree on the term of Judgment for the quantum of funds to be transferred to the applicant: para. 51 of the Reasons for Decision.

B. Analysis

[2] The applicant, 58 Cardill Inc. (“Cardill” or the “applicant”) submitted a cost outline that details fees and disbursements incurred of $24,381.06, inclusive of HST, which quantify on a partial indemnity basis at $17,157.72, inclusive of HST. The applicant seeks costs in the amount of $20,000 plus HST on the basis that the applicant attempted unsuccessfully to settle the application and because the applicant incurred additional costs after the release of my decision in reviewing the reasons and attempting to resolve the issue of costs.

[3] The respondent, Rathcliffe Holdings Limited (“Rathcliffe” or the “respondent”), submits that there was divided success on the application in that the Notice of Application sought additional relief that was abandoned at the hearing. The respondent contends that this resulted in costs thrown away by the respondent that ought to be taken into consideration. The respondent submits that the applicant is entitled to costs in the amount of $15,000, all inclusive.

[4] The applicant was successful on the application and is entitled to costs, in accordance with the normal approach that costs follow the event. The amount of costs must reflect an amount that is considered to be fair and reasonable: Zesta Engineering Ltd. v. Cloutier (2002), 19 A.C.W.S. (3d) 341 (Ont. C.A.) at para. 4. I do not see a basis for awarding the applicant costs for services provided post-hearing. The appropriate scale for costs in this instance is partial indemnity.

[5] I acknowledge that a court should consider whether success was divided on a proceeding in addressing costs and thereby reduce the cost award to the successful party, when appropriate: Lavender v. Miller Bernstein, 2017 ONSC 4739 at para. 5. The respondent has not established that any additional costs were incurred by the respondent, and thereby thrown away, by the reduction of issues addressed at the hearing of this application. I also take into consideration the amount of costs that an unsuccessful party could reasonable expect to pay, in accordance with Rule 57.01(1)(0.b), and note that the respondent’s cost outline sought $20,364.43, all inclusive, on a partial indemnity basis.

C. Disposition

[6] In the exercise of my discretion under section 131 of the Courts of Justice Act, and taking into consideration the principles set out in Rule 57.01, the applicant is awarded costs of the application payable by the respondent in the amount of $17,157.72, all inclusive.

[7] If the counsel are not able to settle a form of Judgment arising from my Reasons for Decision, they are to schedule a Chambers appointment.

Sanfilippo J.

Date: December 15, 2017