Court File and Parties

COURT FILE NO.: CV-18-733-00 DATE: 2018 11 19 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Precision Tree Care Ltd., Plaintiff and: Peel Condominium Corporation No. 507 et al, Defendants

BEFORE: Justice G.D. Lemon

COUNSEL: Christina M. Bowman, Counsel for the Plaintiff Fatima Vieira, Counsel for the Defendant, Peel Condominium Corporation No. 507 Brandon K. Duewel, Counsel for the Defendant Larlyn Property Management Ltd.

HEARD: In Writing

Costs Endorsement

The Issue

[1] PCC 507 brought a motion for security for costs from Precision. That motion was supported by Larlyn. I dismissed that motion. I have now received submissions with respect to costs.

[2] Precision seeks costs fixed in the amount of $13,763.40.

[3] PCC 507 submits that no costs should be awarded, or, in the alternative, only partial indemnity costs payable at the conclusion of the trial.

[4] Larlyn seeks costs against Precision in the amount of $1,250.00, or, alternatively, that there be no award of costs made for or against Larlyn with respect to the motion.

Authorities

[5] Rule 57.01 of our Rules of Civil Procedure sets out the factors that the court may consider when determining costs. The relevant factors that I should consider here are:

(a) the result in the proceeding, (b) 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; (c) 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; (d) the amount claimed and the amount recovered in the proceeding; (e) the complexity of the proceeding; (f) the importance of the issues; (g) the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding.

[6] Modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants: Fong v. Chan , (1999), 46 O.R. (3d) 330, at para. 22.

[7] Costs awards, at the end of the day, should reflect “what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties”: see Boucher v. Public Accountants Council for the Province of Ontario , (2004), 71 O.R. (3d) 291, at para. 24.

Analysis

[8] In my Endorsement, I said:

[55] If costs cannot be agreed upon, ­­­Precision shall provide its costs submissions within the next 15 days. The defendants shall provide their response within 15 days thereafter. No reply submissions shall be filed unless I request them.

[56] Each submission shall be no more than three pages , not including any Bills of Costs or Offers to Settle. [Emphasis added]

[9] Despite this order, PCC 507 provided 4 pages of submissions and Precision provided a brief reply. I would encourage counsel to pay attention to court orders.

[10] Counsel attempted to settle the issue of costs. That is, of course, beneficial. However, those offers to settle costs should not be put before the judge determining costs. I have ignored those offers.

[11] In its submissions, PCC 507 made several submissions attempting to re-argue the motion. I have ignored those submissions.

[12] Although Precision has submitted that costs should be on a substantial indemnity scale, there were no submissions as to why the costs should be on a substantial indemnity scale. I can see no reason to order costs on a substantial indemnity scale.

[13] Precision was successful and is presumed to be entitled to costs.

[14] This was an important matter for all parties and was moderately complex.

[15] There were no offers to settle by any of the parties, however, on a motion such as this, settlement is unlikely.

[16] PCC 507 has included its own actual costs in the amount of $12,745.30. Accordingly, it would know the likely costs consequences if it were unsuccessful.

[17] Larlyn attended but took no position on the motion. Rather, its representative came out of an abundance of caution in case irrelevant issues were argued in its direction. I see no reason that it should pay or be paid costs.

[18] Precision has failed to provide a Bill of Costs on a partial indemnity basis. I can only guess at what that might properly be.

[19] In all of the circumstances, I order PCC 507 to pay costs fixed in the amount of $10,000.00 payable within 30 days.

Justice G.D. Lemon

Date: November 19, 2018

COURT FILE NO.: CV-18-733-00 DATE: 2018 11 19 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Precision Tree Care Ltd. Plaintiff – and – Peel Condominium Corporation No. 507 et al Defendants COSTS ENDORSEMENT Lemon, J

Released: November 19, 2018