Court File and Parties

Court File No.: CV-14-517490 Date: 2018-06-18 Superior Court of Justice - Ontario

Re: C2C Cabinetry Inc., Plaintiff And: Robert Law and 2778751 Canada Inc. cob CNC Automation, Defendants

Counsel: Micheal Simaan, for the Plaintiff Barry Yellin, for the Defendant 2778751 Canada Inc.

Before: Justice W. Matheson

Heard: In writing.

Costs Endorsement

[1] This costs endorsement arises from my trial judgment rendered May 23, 2018.

[2] In this action, the plaintiff claimed $250,000 in damages for breach of contract. The plaintiff obtained judgment in the amount of $76,275. There is no dispute that there should be a costs order in favour of the plaintiff. The dispute relates to quantum.

[3] The general principles applicable to party and party costs are well settled. Costs are discretionary. Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, sets out factors I may consider in exercising my discretion, in addition to the result of the proceeding and any written offers to settle. Overall, the objective is to fix an amount that is fair and reasonable, having regard for, among other things, the expectations of the parties concerning the quantum of costs: Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634, 71 O.R. (3d) 291 (C.A.) at paras. 26, 38.

[4] Certain general principles are articulated in subparagraphs (0.a) and (0.b) of Rule 57.01, specifically the principle of indemnity and the affirmative obligation to consider 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.

[5] The plaintiff seeks approximately $78,000, which is put forward as partial indemnity costs until the end of the trial and substantial indemnity costs for written submissions post-trial. The claim for substantial indemnity costs is based upon the defendant’s acknowledgment post-trial but pre-judgment that the plaintiff’s costs claim was reasonable. However, this is not put forward as an agreement on costs.

[6] The defendant submits that the plaintiff’s costs award should be roughly half the amount claimed. In support of this position, and in response to the acknowledgement referred to above, the defendant relies on the actual judgment falling within the simplified rules under Rule 76 of the Rules of Civil Procedure. Rule 76.13 allows for adverse costs consequences where a plaintiff obtains a judgment that is less than $100,000 in an action that was not commenced under Rule 76.

[7] I have considered both of the above arguments and am not persuaded to award either substantial indemnity costs or a 50% reduction of costs in this case. The impact of the above events can nonetheless be factored into the costs award, and I have done so.

[8] A number of other arguments were advanced in support of reducing the amount claimed, and various offers to settle were put forward though none that meet the criteria of Rule 49.

[9] Without limiting my consideration, I find especially significant the major difference between the amount claimed and the amount recovered (Rule 57.01(1)(a)), especially because much of the damages claim was abandoned, but not until final argument at the end of the trial. It was apparent in the plaintiff’s own evidence at the beginning of the trial that the consequential damages claim did not have anything approaching the necessary evidentiary foundation, even without any challenge to the evidence in cross-examination.

[10] I have taken all submissions into account in the exercise of my discretion, and award the plaintiff costs in the amount of $55,000, all inclusive.

Justice Matheson

Date: June 18, 2018