Court File and Parties

Court File No.: CV-18-603709-0000 Date: 2019/05/13 Ontario Superior Court of Justice

Between: FORTRESS CARLYLE PETER ST. INC. Plaintiff

• and - RICKI’S CONSTRUCTION AND PAINTING INC. Defendant

Counsel: Edward Hiutin and Neil G. Wilson for the Plaintiff Daniel A. Schwartz and Scott McGrath for the Defendant

Heard: In writing

Perell, J.

Reasons for Decision - Costs

[1] The Plaintiff, Fortress Carlyle Peter St. Inc. brought a summary judgment motion for specific performance of an Agreement of Purchase and Sale of a property in Toronto municipally known as 120 Peter St. In the alternative, it sought relief from the forfeiture of the $1.0 million deposit. The Defendant, Ricki’s Construction and Painting Inc. brought a cross-motion for a summary judgment dismissing Fortress’s action. I granted Fortress a judgment for specific performance.

[2] Based on there having been a Rule 49 Offer to Settle and based on the hours and rates set out in its Costs Outline, Fortress Carlyle requests the all-inclusive sum of $100,000. (Its partial indemnity claim was $76,708.89, all-inclusive; its substantial indemnity claim was $110,575.40, all-inclusive.)

[3] Ricki’s Construction made no comments about the effect and the operation of the Offer to Settle and its challenge to Fortress Carlyle’s claim for costs was twofold; namely; (1) Fortress Carlyle’s fee request was excessive and unreasonable and beyond the reasonable expectations of the unsuccessful party; and (2) Fortress Carlyle was unsuccessful on several issues including the issue of the time of the day for the closing of the transaction. It submitted that a costs award of $50,000, all-inclusive, was more appropriate for what it submitted was a simple motion.

[4] I did not regard the motion as a simple motion, and I have reviewed the Costs Outline and, in my opinion, and with a reduction of $10,000 it is a more than reasonable claim for costs in what was extremely important litigation for Fortress Carlyle.

[5] Far more was a stake for Fortress Carlyle than its claim from relief from the forfeiture of the $1.0 million deposit. The critical and fundamentally important matter for Fortress Carlyle was specific performance, which would entail Ricki’s Construction keeping the $1.0 million deposit as part payment of the purchase price. Ricki’s Construction would have reasonably expected that significant legal resources would be expended by Fortress Carlyle in its pursuit of specific performance.

[6] Ricki’s Construction itself retained skilled lawyers to mount a full-throated defence and counterattack, which more than suggests that it reasonably expected that this was not going to be litigation at the thrift store. I am quite confident that a $100,000 claim for costs was no surprise to Ricki’s Construction even before one considers its disreputable conduct with respect to the estoppel certificate that I describe in my Reasons for Decision. (That conduct might have justified a higher scale of cost apart from the Offers to Settle.)

[7] Ricki’s Construction has not disclosed its own expenditure for legal expenses, and while it is under no obligation to do, its decision substantially undermines any talk that Fortress Carlyle’s claim for costs is excessive or unreasonable and rather supports the inference that Ricki’s Construction’s own legal expense was equal to or greater than Fortress Carlyle’s expenditure.

[8] There is no substance to Ricki Construction’s second challenge. There was no divided success; Ricki Construction was the unsuccessful party and that it may have been successful on some disputed issue is not the basis for a distributive costs award, which generally are frowned upon, nor is it a basis for a reduction in the costs on the basis that some costs were wasted.

[9] For the above reasons, I grant Fortress Carlyle $90,000 in costs, all-inclusive.

Perell, J. Released: May 13, 2019