Court File and Parties

Court File No.: CV-17-580809 Date: 2019-03-19 Superior Court of Justice - Ontario

Re: PPF Investments Inc., Plaintiff And: Mackenzie Susan F. Goodall and Robert Goodall, Defendants

Before: Justice Edward P. Belobaba

Counsel: Adam Ezer for the Plaintiff (Defendant by Counter-claim) Paul Pape and Cristina Senese for the Defendants (Plaintiffs by Counter-claim)

Heard: February 1, 2019

Costs Award

[1] In a decision released on February 15, 2019, I considered cross-motions for summary judgment arising out of the termination of a commercial lease. [1] I decided largely in favour of the tenant. I dismissed the landlord’s motion for summary judgment and also the landlord’s action. I granted the tenant’s cross-motion for summary judgment on the liability portion of her cross-claim and sent her damages cross-claim to trial.

[2] The successful tenant now seeks her costs.

[3] I begin by noting that this matter was proceeding under the simplified procedure set out in Rule 76. The essence of a costs award in this context is that “costs incurred must be reasonable and proportionate to the amount recovered.” [2]

[4] The tenant seeks a total costs award of $78,060. This request is neither reasonable nor proportionate given that that the “amount recovered”, that is the landlord’s claim that was dismissed, was only $66,496. Add to this the fact that the tenant’s cross-motion for summary judgment on her damages claim was dismissed and is proceeding to trial, one must conclude that a reasonable and proportionate costs award should be less than $60,000.

[5] The landlord’s overall legal costs, on a partial indemnity basis, for both the action and the summary judgment motion were $53,503. The landlord suggests that an award of $45,000 all-inclusive would be fair and reasonable and appropriately proportionate.

[6] I agree with the landlord. Costs are therefore fixed at $45,000 all-inclusive, payable forthwith by PPF Investments to Kenzie Goodall.

Footnotes

[1] PPF Investments v. Goodall, 2019 ONSC 974. [2] Daboll v. DeMarco, 2011 ONSC 2836 at para. 19; Trafalgar Industries of Canada Ltd. v. Pharmax Ltd. (2003) , 64 O.R. (3d) 288 (SCJ) at paras. 11-12.

Justice Edward P. Belobaba Date: March 19, 2019