COURT FILE NO.: CV10-317SR
DATE: 2018-05-17
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Alexandra Collins, Plaintiff
and
Van Dolder Enterprises Limited, Van Dolder’s Four Seasons Sunrooms, Van Dolder’s Home Team, Van Dolder’s Custom Exteriors, A Division of Cash & Carry Aluminium Products and Four Seasons Solar Products LLC, Defendants
BEFORE: Justice C.J. Conlan
COUNSEL: Brian H. Renken, for the Plaintiff
Mary Anne Cummings, for the Defendant, Van Dolder’s Home Team
ENDORSEMENT ON COSTS
Conlan J.
I. Introduction
[1] Ms. Collins sued the Defendants because of an alleged defective sunroom that she purchased from and which was installed at her home by Van Dolder’s. The unit was manufactured by a third party.
[2] During the winter months, Ms. Collins experienced icing, condensation, moisture, and inadequate heat.
[3] Having defended the action, brought under the simplified procedure, Van Dolder’s moved for summary judgment. It argued that the action should be dismissed because it was commenced outside the applicable limitation period.
[4] This Court agreed with Van Dolder’s. The Motion for summary judgment was granted, and the action was dismissed: Collins v. Van Dolder Enterprises Limited, et al., 2018 ONSC 2319.
[5] The parties have been unable to settle the issue of costs. Written submissions have been received and reviewed by this Court.
II. The Law
[6] As the successful party, Van Dolder’s is presumed to be entitled to some costs. That is not disputed by Ms. Collins.
[7] Quantum of costs is discretionary: section 131(1) of the Courts of Justice Act.
[8] This Court ought to analyze the result and the degree of success on each side (here, Van Dolder’s was entirely successful), look at offers to settle on both sides, and consider the factors listed in Rule 57.01(1).
[9] The principle of proportionality is important. Modern costs awards are designed to encourage settlement, to partially indemnify successful litigants, and to sanction inappropriate conduct. The objective is to make an award that is fair, just and reasonable in all of the circumstances including what the losing side would have reasonably expected to pay. We must also, however, avoid a result where costs are granted in an amount that is clearly disproportionate when one considers the totality of the circumstances.
III. The Positions of the Parties
[10] Van Dolder’s claims costs in the total amount of $30,044.19, calculated on a partial indemnity scale to April 8, 2018 and on a substantial indemnity scale from April 9th (the date that the Motion for summary judgment was heard at Court).
[11] Ms. Collins suggests that a reduced amount be awarded to Van Dolder’s – something in the range of $15,000.00, all-inclusive.
IV. Conclusion
[12] On April 5, 2018, Van Dolder’s offered to settle the litigation based on a dismissal of the action without costs, though the Offer had to be accepted by Ms. Collins very quickly – by 2:00 p.m. the next day, April 6th. Otherwise, Van Dolder’s would have its costs of the proceeding and of the Motion on a partial indemnity basis.
[13] I see nothing excessive about the time spent or the hourly rates charged by Van Dolder’s counsel, but I do agree with Ms. Collins that the Motion for summary judgment could have been brought earlier rather than at the commencement of the trial, saving time and expense.
[14] With that in mind, and keeping the principle of proportionality at the forefront, I am of the view that a fair, just and reasonable quantum of costs in favour of Van Dolder’s is $20,000.00, all-inclusive.
[15] That is the Order of the Court, payable by Ms. Collins within thirty (30) days of today.
Conlan, J.
DATE: May 17, 2018
COURT FILE NO.: CV10-317SR
DATE: 2018-05-17
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Alexandra Collins, Plaintiff
and
Van Dolder Enterprises Limited, Van Dolder’s Four Seasons Sunrooms, Van Dolder’s Home Team, Van Dolder’s Custom Exteriors, A Division of Cash & Carry Aluminium Products and Four Seasons Solar Products LLC, Defendants
BEFORE: Justice C.J. Conlan
COUNSEL: Brian H. Renken, for the Plaintiff
Mary Anne Cummings, for the Defendant, Van Dolder’s Home Team
ENDORSEMENT ON COSTS
Conlan, J.
DATE: May 17, 2018