Court File and Parties

COURT FILE NO: C-88-18 DATE: 2018/04/06

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

2432714 Ontario Inc., cob as Pita Pit Applicant

– and –

Heffner Development Group Limited Respondent

COUNSEL: Dennis G. Crawford, Counsel for the Applicant Filipe A. Mendez, Counsel for the Respondent

HEARD: In Writing

COSTS DECISION

Sheard J.

[1] The Applicant sought and was granted an interlocutory injunction, prohibiting the Respondent landlord from breaching its lease with the Applicant.

[2] Following the hearing, the parties provided Costs Outlines. The hours spent and the hourly rates of the counsel appear to be within reasonable ranges, but the Applicant’s disbursements of $13,980.14, exceeded its full indemnity fees by $1,000.00. Rather than fixing costs based on the Costs Outlines alone, the parties were invited to provide written costs submissions. Written submissions were received and considered in this decision.

[3] The Applicant was successful on its motion for an interlocutory injunction and is entitled to its costs.

[4] The parties agree that the fees should be awarded on a partial indemnity basis but do not agree on the amount. The Applicant seeks fees and HST of $7,491.90 and the Respondent submits that the award should match its partial indemnity fees and HST of $5,288.40.

[5] I have considered the applicable rule 57.01 factors[^1], and the Boucher[^2] principle that, when deciding what amount in costs would be fair and reasonable, the court must take into account the expectation of the parties. Although the Respondent’s partial indemnity fees are lower than those of the Applicant, as the moving party, the Applicant carried a heavier burden. I therefore exercise my discretion[^3] to award the Applicant its fees and HST of $7,491.90.

[6] I must apply the same principles to the disbursements claimed by the Applicant. I cannot conclude that the Respondent would reasonably expect to be liable to pay disbursements of $12,470.61, which include $11,611.80 identified in the Applicant’s Costs Outline as “Expert Witness Retainer”. That retainer related to Daniel Pashman whose affidavit was included in the Applicant’s Record on its motion. Pashman purported to provide an expert opinion that the food sold by the proposed new tenant fell within the definition of the Applicant’s “Primary Products” as defined in the lease, and that the Respondent landlord was in breach of its lease by renting to the new tenant.

[7] It is not clear from the Costs Outline whether the “Witness Retainer” was the amount invoiced by Pashman for his affidavit or whether the retainer also included a budget to give evidence at a trial or to submit to cross-examination. Even if the retainer relates only to the preparation of the Pashman affidavit, the fee claimed by the Applicant exceeds a reasonable amount to be awarded on this motion.

[8] Further, while there is reference to the Pashman affidavit in my Reasons for Decision on the injunction motion, his was only part of the evidence considered by the Court. It would be overstating to conclude that Pashman’s affidavit was given the weight that an expert, qualified at trial, might be given.

[9] It is possible and perhaps likely that the Pashman evidence might be relied upon by the Applicants throughout these proceedings. For that reason, my costs order on the motion respecting this disbursement is made without prejudice to the Applicant’s right to again ask a court to consider the costs of the Pashman “Expert Witness Retainer”, should the Applicant seek to rely on his evidence in the future.

[10] For the reasons set out above, I fix the Applicant’s disbursements at $3,761.76. This amount includes $73.49 HST on the taxable disbursements of $565.32, $220.00 in non-taxable disbursements, and $2,902.95, intended to equal 25 percent of the amount claimed for the Expert Witness Retainer.

Disposition

[11] I fix the Applicant’s costs of the motion at $11,253.66, inclusive of fees, disbursements and H.S.T.

Sheard J.

Released: April 6, 2018

[^1]: R.R.O. 1990, REGULATION 194 [^2]: Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) [^3]: Section 131, Courts of Justice Act, R.S.O.1990, c. C.43