Knowles v Dosch, 2017 ONSC 866
CITATION: Knowles v Dosch, 2017 ONSC 866
COURT FILE NO.: CV-15-525511
DATE: 2017-02-07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DEBRA KNOWLES
Plaintiff
– and –
HANS MICHAEL DOSCH and ANA DOSCH
Defendants
COUNSEL:
Peter R. Greene and Annie (Qurrat-ul-ain) Tayyab for the Plaintiff
Jeffrey C. Goldberg for the Defendants,
HEARD: WRITTEN SUBMISSIONS
BEFORE: G. DOW, J.
ADDITIONAL REASONS FOR DECISION
[1] Following the release of my reasons in this matter on December 9, 2016 (2016 ONSC 7271, 2016 ONSC7271) I received communications from the parties about additional issues. The first was my reasons lacked confirmation that the plaintiff was entitled to judgment in the amount of $43,154.94 representing an agreed on amount and cognizant of the defendants’ consent to the release to the plaintiff (as of August 16, 2016) of the $100,000.00 deposit tendered on or about September 24, 2014 that was kept by the plaintiff’s real estate agent. I agree I could have made this clearer following paragraph 10 of my original reasons and now confirm the plaintiff is entitled to judgment against the defendants in the amount of $43,154.94. Similarly, the balance of the plaintiff’s claim (for $104,357.45) is dismissed.
Costs
[2] The plaintiff sought reconsideration of my awarding the defendants the sum of $21,000.00 inclusive of fees and HST plus appropriate assessable disbursements as set out in paragraph 13 of my original reasons. This was on the basis, as I would characterize it, the plaintiff’s success in recovering $143,154.97 of the (+$104,397.45 =) $247,552.52 they were seeking. They also rely on the apparent delay by the defendants in acknowledging what was owed.
[3] I acknowledge my consideration of costs was focused on the defendants’ success at trial in having the exchange rate differential portion of the plaintiff’s claim dismissed and allowing the defendants their costs of all of the action rather than just the trial.
[4] The plaintiff acknowledged the defendants admitted liability in or before the September 29, 2015 examinations for discovery such that the defendants’ examination for discovery was conducted by written interrogatories. As a result, I conclude from that point in time the case was restricted to an assessment of damages.
[5] Both parties made Rule 49 offers. The plaintiff’s is dated June 22, 2015 and the defendants is dated September 16, 2015, which I have reviewed. Neither party obtained a result “as favourable or more favourable” cited by the Rule to invoke application of the costs consequences contemplated under Rule 49.10. As a result, I rely on the various factors set out in Rule 57.01.
[6] The submissions by the plaintiff that there was delay by the defendants in agreeing to the release of the $100,000.00 deposit to the plaintiff is met with the defendants’ position that it was not requested that it be released prior to the pre-trial conference held on July 26, 2016. In my view, the defendants’ willingness to settle this matter for an amount in excess of $100,000.00 as of September 16, 2015 emphasizes the plaintiff’s ongoing obligation to mitigate its claim which I propose to deal with in my comments below about pre-judgment interest.
[7] Overall, I agree with the submission by the plaintiff that the defendants’ costs should be reduced to reflect the plaintiff’s success in obtaining judgment against the defendants while also reflecting the defendants’ success on the issue in dispute at the trial. As a result, I would reduce the defendants’ entitlement to costs to the $10,000.00 amount suggested by the plaintiff, inclusive of HST, plus assessable disbursements pertaining to the trial, if any, to be agreed upon as assessed.
[8] In my view, this is the appropriate decision both within the discretion afforded me under Section 131 of the Courts of Justice Act R.S.O. 1990 c.C.43 and the principles set out in Boucher v. Public Accountants Council for the Province of Ontario et al, 2004 14579 (ON CA), [2004] O.J. No. 2634. In all of the circumstances, and in particular the much smaller expense incurred by the defendants in this action compared to that incurred by the plaintiff, results in my decision to not further reduce or offset the award of costs in favour of the defendants.
Pre-Judgment Interest
[9] While I would agree with the submission of counsel for the defendants that this was not the purpose of permitting further submissions, I again acknowledge my original decision focused only the issue at trial and neglected to address whether interest ought to be awarded on the amount the plaintiffs succeeded in recovering.
[10] Dealing first with the deposit of $100,000.00 and in accordance with Section 130 of the Court of Justice Act, supra, I am prepared to award the plaintiff the 209 days between February 19, 2015 when the damages crystalized and September 16, 2015 when the defendants offered an amount in excess of this deposit. For the time frame after September 16, 2015 until the funds were received on August 16, 2016, or 335 days, it is my view both parties could have equally addressed what to do with the $100,000.00 being held in trust by the plaintiff’s real estate agent. As a result, I am prepared to allow 50 percent or 167.5 days.
[11] The applicable rate of interest, this action having been issued April 7, 2015 or the second quarter is 1 percent (and not 1.3 percent as indicated in the plaintiff’s materials which would apply if the Ministry of the Attorney General had not already adjusted the rates they have published - - see the note at the bottom of the chart - - for the definition set out in Section 127(1) of the Courts of Justice Act, supra). I calculate the interest owed on (209 + 167.5 =) 376.5 days to be $1,030.80.
[12] Regarding the $43,154.94, the plaintiff is entitled to and should recover interest on this amount from February 19, 2015 to the date of judgment, being December 9, 2016 or 659 days, again at 1 percent. I calculate the amount to be $778.62.
[13] The plaintiff is thus entitled to recover ($1,030.80 + $778.62 =) $1,809.42 of pre-judgment interest.
Conclusion
[14] For clarity, the plaintiff shall have judgment against the defendants for $43,154.94 plus pre-judgment interest in the amount of $1,809.42. The defendants shall recover from the plaintiff their costs fixed in the amount of $10,000.00 inclusive of HST plus assessable disbursements regarding the trial to be agreed on or assessed. The balance of the plaintiff’s claim in the amount of $104,357.45 is dismissed.
Mr. Justice G. Dow
Released: February 7, 2017
CITATION: Knowles v Dosch, 2017 ONSC 866
COURT FILE NO.: CV-15-525511
DATE: 20170207
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DEBRA KNOWLES
Plaintiff
– and –
HANS MICHAEL DOSCH and ANA DOSCH
Defendants
ADDITIONAL REASONS FOR DECISION
Mr. Justice G. Dow
Released: February 7, 2017