Court File and Parties
COURT FILE NO.: 57677/17 DATE: 20180905 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 2410488 ONTARIO INC., Plaintiff AND: ALEX AIDAN FITZGERALD FURNEY, Defendant
BEFORE: The Honourable Mr. Justice R. B. Reid
COUNSEL: N. Roth, Counsel, for the Plaintiff D. Yudashkin, Counsel, for the Defendant
HEARD: March 29, 2018
COSTS ENDORSEMENT
Background:
[1] The parties are engaged in litigation concerning a mortgage loan by the plaintiff to the defendant as to a property located at 1384 York Road, Niagara-on-the-Lake Ontario and the related claim for possession of the mortgaged lands.
[2] The plaintiff brought a motion returnable March 1, 2018 for an order that the defendant pay money into court upon which the mortgage would be discharged. The motion also sought judgment for possession of the lands with deferred enforcement and leave to issue a writ of possession.
[3] On March 1, 2018, an order was made by Justice H. S. Arrell pursuant to Minutes of Settlement, including an order for possession, a term that funds be paid into court by the defendant and the assignment or discharge of the plaintiff’s mortgage. The parties were ordered to move expeditiously to resolve or litigate their issues as to the amounts owing to the plaintiff. Pursuant to the Minutes of Settlement, it was ordered that: “Costs of this motion are adjourned sine die on 7 days’ notice or upon further order of the Court or agreement of the parties.”
[4] On notice pursuant to the March 1 order, the matter came on before me as to the matter of costs of the motion.
[5] The Minutes of Settlement contained wording slightly different as to costs than appeared in the endorsement and subsequent order. Counsel for the defendant submitted that costs referred to in the Minutes of Settlement as costs of the motion were not yet known since the motion itself was still in progress, there being a necessary accounting. Therefore it was submitted that this costs motion by the plaintiff was premature.
[6] Following submissions, pursuant to oral reasons, I decided that the accounting was not part of the motion and that the costs claim by the plaintiff was timely.
[7] The plaintiff made submissions as to the costs it was requesting.
[8] Counsel for the defendant advised that he was in the process of being removed from the record and that it would be appropriate to allow additional time for the defendant to respond to the costs claim.
[9] I determined that the defendant should have an opportunity to make further representations and ordered that any submissions be made in writing on or before May 1, 2018 followed by an opportunity for the plaintiff to file responding material on or before May 15, 2018.
[10] No material was filed with the court on behalf of the defendant pursuant to the timetable set by me on March 29.
[11] The following is my ruling as to costs of the motion.
Ruling as to costs:
[12] The court’s discretion to awards costs flows from s. 131 of the Courts of Justice Act.
[13] Factors to be considered in the exercising of discretion are enumerated in rule 57.01 of the Rules of Civil Procedure. Success is a presumptive factor and in this case, the plaintiff was entirely successful. Thus an award of costs is appropriate in favour of the plaintiff, payable by the defendant.
[14] The plaintiff claims costs in the sum of $17,108.18 on a substantial indemnity basis and requests that the award be added to the mortgage account and to bear interest at the rate of 15 percent calculated monthly being the rate set forth in the mortgage.
[15] No dispute as to the hours or hourly rate charged has been received.
[16] The mortgage originally secured $150,000 and the parties settled account at $182,000 on March 10, 2017. The amount increased to $321,000 which was the amount ordered paid into court pursuant to the minutes of settlement. The plaintiff submits that the conduct of the defendant has delayed the resolution of the matter unnecessarily. An attendance was required to settle the order of March 1.
[17] Applying the discretionary factors under rule 57.07 confirms that a costs order against the defendant is appropriate. However, I am not satisfied that those factors lead to a conclusion that costs should be payable on a substantial indemnity basis which contains a quasi-punitive component.
[18] Therefore, costs will be payable by the defendant to the plaintiff on a partial indemnity basis as follows:
- lawyer’s fees: $9,425.50
- disbursements: $1,001.73
- HST: $1,355.54
- TOTAL: $11,782.77
[19] This costs award will be added to the mortgage account and will bear interest at 15 percent per annum, calculated monthly, being the rate set forth in the mortgage.