Court File and Parties

COURT FILE NO.: CV-18-605637

DATE: 20190530

SUPERIOR COURT OF JUSTICE - ONTARIO

B E T W E N:

MUSLIM GREEN CEMETERIES CORPORATION, Applicant

• and -

TORONTO MUSLIM CEMETERY CORP., Respondent

BEFORE: Copeland J.

HEARD: IN WRITING

COUNSEL: Mr. John Longo and Mr. Patrick Copeland for the Applicant

Mr. Garth Dingwall for the Respondent

COSTS ENDORSEMENT

[1] On January 9, 2019, I decided an application in favour of the applicant: Muslim Green Cemeteries v. Toronto Muslim Cemetery, 2019 ONSC 87. In the application, the applicant sought a ruling and a series of declarations regarding the interpretation of a contract relating to the development and management of a non-profit cemetery to serve the Sunni Muslim community in the Greater Toronto Area. I found in favour of the applicant regarding three issues of interpretation of the contract, and granted three declarations as relief.

[2] I received costs submissions in writing. These are my reasons in relation to costs.

[3] The applicant seeks costs on a partial indemnity basis of $45,891.90, inclusive of disbursements and taxes. The applicant’s bill of costs does not include an itemization of disbursements. However the fees portion of the bill of costs, including HST, is just over $38,000.00 on a partial indemnity basis.

[4] The applicant submits that the costs award it seeks is supported by the following factors. First, the applicant submits it was wholly successful in the application. Second, the applicant submits that the prior history of litigation between the parties, including a previous order made by Justice Dow on November 22, 2016 supports the costs order sought. In particular, the applicant argues that the history of litigation shows that the respondent has a litigation strategy of “win at all costs”, including advancing tenuous positions, in order to re-write or nullify the agreement. The applicant notes that this was apparent in the lack of clarity in the respondent’s position in oral argument of the application, and changing and contradictory positions in oral argument. This brings me to the applicant’s third argument, which is that the multitude of sometimes contradictory and unsupported arguments raised by the respondent necessitated significant additional effort by the applicant, including lengthy cross-examinations, and detailed facta.

[5] The respondent submits that the costs should not be awarded to the applicant. In the alternative, the respondent submits that if costs are awarded, the award sought by the applicant is excessive, and a reasonable amount of costs would be no more than $20,000.00.

[6] The respondent submits that the applicant brought this application, rather than obtain a cemetery operator’s licence under the Funeral, Burial and Cremation Services Act 2002, S.O. 2002, c. 33. The respondent submits that this shifted the risk of non-compliance with the applicable regulatory legislation to the respondent. The respondent submits that the applicant caused unnecessary costs by bringing a contempt motion before Justice Chiappetta, which was unsuccessful. The respondent also submits that no costs ought to be awarded because the application raised novel issues in relation to the interpretation of the care and maintenance fund (“CMF”) requirements under the regulatory legislation.

[7] Pursuant to the Courts of Justice Act, s. 131(1), the court has a broad discretion when determining the issue of costs. Rule 57.01(1) sets out a non-exhaustive list of factors to be considered by the court when determining the issue of costs. These factors include: the principle of indemnity and the results obtained; the reasonable expectations of the paying party; the amount claimed in the proceeding and proportionality; the complexity of the proceeding; the importance of the issues; the experience of the lawyer for the party entitled to costs; any offers to settle; and, the conduct of a party that tended to lengthen the duration of the proceeding.

[8] The overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v. Public Accountants Counsel for Ontario, 2004 CanLII 14579 (ONCA). I have considered these factors, as well as the principle of proportionality (R. 1.01(1.1)), keeping in mind that the court should seek to balance the indemnity principle with the fundamental objective of access to justice.

[9] I reject the respondent’s argument that there should be no costs award. The respondent’s argument in this respect regarding its purported concerns about regulatory compliance under the Funeral, Burial and Cremation Services Act 2002, supra, are arguments which I have already rejected in my reasons granting the application.

[10] I reject the respondent’s argument that no costs should be awarded because the application involved a novel issue of interpretation of the CMF provisions of the regulatory legislation. With respect, this argument misconceives the subject matter of the application. The application concerned the interpretation of a commercial contract. An aspect of the arguments raised involved interpretation of the regulatory legislation. But this does not change the fact that the subject matter of the application was a commercial contract, and at base about the monetary value of what the applicant had contracted for. This application did not raise the type of public interest concerns that warrant making no award of costs.

[11] I agree with the applicant’s submission that it was wholly successful on the application. As such, the indemnity principle supports that the applicant is entitled to an award of costs for the application. The primary issue in the circumstances is the quantum of the award of costs.

[12] I reject the respondent’s submission that I should consider the decision of Justice Chiappetta in the contempt motion in assessing costs of this matter. Justice Chiappetta considered the costs of that motion, and made no order as to costs for either party. The applicant has not included any time related to the contempt motion in its bill of costs.

[13] Costs awarded should be in an amount that is proportionate to the nature of the proceeding, including the amount of the claim, the complexity of the proceeding, and the importance of the issues to the parties. In this case the contract at issue involved an agreement where the applicant had paid approximately $2.5 million for close to 6,000 burial plots. This is a significant amount of money, and was important to the applicant. The application involved a number of legal issues, including some consideration of the applicable regulatory legislation. In my view it was of moderate complexity. I note that the complexity was complicated by the lack of clarity and shifting in the respondent’s position on some of the issues, which I noted in my earlier endorsement. The application took the better part of a day to argue.

[14] I also agree with the applicant that the history of litigation, which supports a conclusion of an attempt by the respondent to frustrate the contract, is relevant to the assessment of costs.

[15] All of this said, I weigh two factors as supporting a somewhat lower costs award than the one sought by the applicant. First, the partial indemnity rate sought for senior counsel for the applicant is somewhat high (although the rates for other counsel are reasonable). Second, although the application was of importance to the applicant, of some complexity, and about a contract worth a significant amount of money, it was still a one day application. In my view proportionality supports a somewhat lower award.

[16] In all of the circumstances, I find that a reasonable and proportionate award of costs of the application is that the respondent shall pay the applicant’s costs on a partial indemnity basis in the amount of $35,000.00, inclusive of disbursements and HST.

Justice J. Copeland

Released: May 30, 2019