Court File and Parties

COURT FILE NO.: CV-17-571096

DATE: 20190920

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: OLGA SEPA, also known as OLGA KOSSILOVA, Applicant

AND:

TORONTO STANDARD CONDOMINIUM NO. 1963, Respondent

BEFORE: LEDERER J.

COUNSEL: Julian Binavince, Counsel, for the Applicant

Jonathan H. Fine, Counsel, for the Respondent

HEARD: In Writing

Endorsement

[1] This is an endorsement as to costs.

[2] It arises from a dispute between a condominium corporation and an owner of one of the units in the building. It was alleged that the corporation, without notice attended at the unit and undertook some work associated with “cleanout piping” that served the building; in condominium parlance, part of the “common elements”.

[3] The work was disruptive and left the unit in a condition that was less than it had been before the work was done. As the unit holder perceived it, the unit, particularly the drywall, was not “refurbished” in a good and workmanlike manner. It was alleged that there was continuing harm in the form of unpleasant odours.

[4] The Applicant, the unit holder, commenced this proceeding in an effort to have the situation corrected, in part by damages representing the cost of repairs she had undertaken. In total she sought damages of $50,000.

[5] It settled. There was nothing associated with the substance or merits of the dispute left for the court to adjudicate. However, a term of the settlement was that the issue of costs remained to be dealt with by the Court.

[6] This endorsement is in satisfaction of that term of the agreement. Both parties seek costs.

[7] The Applicant submits that, absent any exceptional circumstances, where a party has achieved some success by commencing and prosecuting a proceeding, it should be awarded its costs with respect to the proceeding. She asks for costs of $21,419.81.

[8] The Respondent says that but for a settlement offer that was made on May 26, 2017, this would be a case where each party should pay its own costs. In his submissions counsel acknowledged that the offer was not an offer made pursuant to Rule 49 of the Rules of Civil Procedure but that, nonetheless, the Court should exercise its discretion and award costs on the basis set by the rule (partial indemnity costs prior to the date of the offer and substantial indemnity costs thereafter). Counsel submitted that the offer was substantially the same or better than the settlement that was agreed to. The condominium corporation asks for $40,069.05 in costs.

[9] There are competing values. Condominium corporations are not free-standing legal entities that are separately or independently financed. They are essentially the pooling of resources provided by the unit holders. When a unit owner sues a condominium corporation he or she is suing the neighbours they share the building with. If the corporation is put to unnecessary cost, the neighbours should not be required to foot the bill. On the other hand, it is far better if these disputes can be resolved through agreement rather than full argument in court. The bad taste of the of the latter does not fade away so easily.

[10] In this case the dispute could have been settled much earlier. This is demonstrated by how close the settlement offer was to the agreement that was made. For this reason, I am not prepared to make any order of costs in favour of the Applicant. In a similar vein I do not think it appropriate to parse the Minutes of Settlement to evaluate whether they are the same or better than the earlier offer. They are different in ways that would give the Applicant more comfort. To take the offer made and use it to support an award for costs would become a disincentive to any co-operative settlement that would make it easier for the parties to move forward without continuing acrimony. In this case it would require the Applicant to pay the costs for the failure to accept a settlement that was withdrawn on May 31, 2017, five days after it was made and almost two years before the appearance in Court.

[11] In the circumstances I find that counsel’s initial instinct that this is a case where the parties should each bear their own costs is appropriate.

[12] No costs are awarded.

Lederer J.

Date: September 20, 2919