OSHAWA COURT FILE NO.: CV-17-1726

DATE: 20180517

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Elle Mortgage Corporation, Plaintiff

AND:

William Greig Nesbitt, Jennifer Nesbitt and Vision 3000 Corporation, Defendants

BEFORE: The Honourable Mr. Justice C.F. de Sa

COUNSEL: Terry Walman and Balpreet Lailna, for the Plaintiff

Ryan Hanna, for the Defendant

HEARD: In-Writing

ENDORSEMENT

[1] I decided in favour of the Plaintiff and granted Summary Judgment on December 20, 2017. I have since received costs submissions from the parties.

Analysis

[2] Costs awards under section 131 of the Courts of Justice Act, are highly discretionary.

[3] Rule 57.01 of the Rules sets out the factors to be considered including the amount of costs an unsuccessful party would expect to pay and the complexity of the proceeding. Assessing costs is not simply a matter of arithmetic, where dockets are tabulated. The overarching principle is that the court’s assessment should be fair and reasonable in light of all the circumstances.

[4] Section 57.01 provides as follows:

57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs. R.R.O. 1990, Reg. 194, r. 57.01 (1); O. Reg. 627/98, s. 6; O. Reg. 42/05, s. 4 (1); O. Reg. 575/07, s. 1.

[5] The Defendants take the position that the Plaintiff’s success did not exceed the settlement offer and accordingly, each party should bear its own costs. They obtained an outcome which the Defendants would have agreed to on consent. The Plaintiff wanted immediate possession, and the Defendant wanted a power of sale. Had they settled the issue, the motion would have been unnecessary.

[6] While the Plaintiff was not awarded exactly what it sought, I do view that the outcome was substantially in its favour. The only reason I did not grant the exact relief sought by the Plaintiff was because I was trying to minimize the prejudice caused to the Defendants. This is hardly a basis to discount the Plaintiff’s entitlement to costs in my view.

[7] The Plaintiff seeks costs on a substantial indemnity basis in the amount of $12,219.45. I do not view this as an unreasonable amount given the delays created by the Defendants.

[8] Accordingly, I award costs in favour of the Plaintiff in the amount of $12,000 plus HST, and these amounts are to accrue post-judgment interest in accordance with s. 129(1) of the Courts of Justice Act.

Justice C.F. de Sa

Date: May 17, 2018