Court File and Parties

Court File No.: CV-017-579044 Date: 2018-03-09 Superior Court of Justice - Ontario

Re: Markham Village Shoppes Limited, Plaintiff – AND – Gino’s Pizza Ltd., Gino’s Pizza Inc., Baljit Ganjar, Vic Darubra, Martin Bernard, Redwater Capital Realty Inc., and Haroon Amadi, Defendants

Before: Justice E.M. Morgan

Counsel: Mitchell Wine, for the Plaintiff John Morrissey, for the Defendant, Gino’s Pizza Ltd.

Heard: Costs submissions in writing

Costs Endorsement

[1] On January 24, 2018, I granted summary judgment to the Plaintiff in this action as against the Defendant, Gino’s Pizza Ltd. (“Gino’s”). As the successful party, the Plaintiff is entitled to costs.

[2] As in most summary judgment motions, the Plaintiff’s counsel, representing the moving party, compiled an evidentiary record, engaged in relevant legal research, attended at cross-examinations, was put to the proof of the damages claimed, and appeared and argued the case in motions court. It may be a more cost-efficient way to proceed than a trial, Hryniak v Mauldin, 2014 SCC 7, [2014] 1 SCR 87, at para 41, but it is never a truly inexpensive endeavor.

[3] Counsel for the Plaintiff seeks over $25,000 in fees and just over $3,000 in disbursements. This is based on partial indemnity costs incurred up until September 25, 2017, when the Plaintiff served an Offer to Settle, and substantial indemnity costs incurred after that date.

[4] The September 25, 2017 Offer proposed settling the action by Gino’s paying the Plaintiff $50,000, inclusive of interest and taxes plus costs on a partial indemnity basis. It was not accepted, and I ordered Gino’s to pay the Plaintiff damages in the amount of $85,697.96. Since the Offer would have been a better result for Gino’s than what the court awarded, Rule 49.10(1) of the Rules of Civil Procedure provides that the unsuccessful party shall pay partial indemnity costs to the successful party up to the date of the Offer, and substantial indemnity costs for any costs incurred by the successful party after the date of the Offer.

[5] The amount claimed by Plaintiff counsel is well within the range of reasonable costs that one sees in motions court for a matter of this size and complexity. It should not take a well-advised opponent by surprise after a successful summary judgment motion: Rule 57.01(1)(0.b). Furthermore, it reflects number of different factors that the Rules mandate me to take into account in exercising my discretion to fix costs under section 133 of the Courts of Justice Act: the principle of indemnity for the Plaintiff [Rule 57.01(1)(0.a)], proportionality to the damages award [Rule 57.01(1)(a)], the complexity of the proceeding [Rule 57.01(1)(c)], and the importance of the proceeding to the parties [Rule 57.01(1)(d)].

[6] Gino’s shall pay the Plaintiff a total of $32,000 in respect of costs, inclusive of all fees, disbursements, and HST.

Morgan J.

Date: March 9, 2018