COURT FILE NO.: CV-16-547136

DATE: 20180307

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

GOLDRIBBON HOMES LTD. Plaintiff

– and –

YEHUDA KESSLER Defendant

J. Richard Forget for the Plaintiff

M. Katzman for the Defendant

HEARD: In Writing

PERELL, J.

REASONS FOR DECISION - COSTS

[1] The Plaintiff Goldribbon Homes Ltd. unsuccessfully appealed the Order of Master Albert dated November 1, 2017.[^1] The successful Defendant Yehuda Kessler requests costs of $5,382.42. Goldribbon Homes, whose own bill of costs on a partial indemnity basis would support a costs claim of $1,711.65, submits that Mr. Kessler’s request is excessive and that the appropriate award is $1,581.15, all inclusive.

[2] On the motion before the Master, she found that Goldribbon Homes had not proven that Mr. Kessler was evading service and that there was no basis to grant an Order dispensing with service and the attendant relief. She held that the only issue was whether Goldribbon Homes should be allowed an extension of time for serving the Statement of Claim having regard to the requirement in the Construction Lien Act[^2] that a Statement of Claim be served within 90 days. She refused to grant the extension for the lien claim, but she granted an extension of time for service of the Statement of Claim for the purposes of the alternative claims for breach of contract or quantum meruit. Goldribbon Homes appealed, and in its factum for the appeal, it included facts that had not been before the Master.

[3] On the appeal, I concluded that the circumstance that Mr. Kessler did not disclose his existing action to the court may or may not provide some basis for relief for Goldribbon Homes, but it does not provide any basis for an appellate court to disturb the Order made by the Master, which was a sound decision in fact and in law based on the record before her. And, I concluded that the Master made no error based on the record before her and her decision should be affirmed.

[4] That Mr. Kessler did not disclose his existing action to the Master and that this circumstance was outside the boundaries of an appeal does not mean that the circumstance is irrelevant to the assessment of costs for the appeal. The disclosure did not affect the outcome of the appeal and did not unnecessarily lengthen the duration of the appeal.

[5] Mr. Kessler was the successful party on the appeal and is entitled to costs on a partial indemnity basis. The critical controlling principle for the awarding of costs is that the sum awarded reflect the fair and reasonable expectations of the unsuccessful litigant.[^3] In my opinion, having regard to the particular circumstances of the immediate case and the usual factors that animate the court’s discretion with respect to costs, the appropriate award is $3,500, all inclusive, payable to Mr. Kessler in any event of the cause.

Perell, J.

Released: March 7, 2018

COURT FILE NO.: CV-16-547136 DATE: 20180307

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

GOLDRIBBON HOMES LTD. Plaintiff

– and –

YEHUDA KESSLER Defendant

REASONS FOR DECISION – COSTS

PERELL J.

Released: March 7, 2018

[^1]: Goldribbon Homes Ltd. v. Kessler, 2018 ONSC 987. [^2]: R.S.O. 1990, c. C.30. [^3]: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 at para. 24 (C.A.).