COURT FILE NO.: CV-18-610391-0000
DATE: 2020/02/28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KATALIN MALATINSZKY
Plaintiff
- and -
AHMAD MIRI
Defendant
David W. Dolson for the Plaintiff
Jeffrey M. Neiman for the Defendant
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] The Plaintiff, Katalin Malatinszky, entered into an agreement to sell her home to the Defendant, Ahmad Miri. The sale did not close. Ms. Malatinszky resold the property at a loss, and she brought a summary judgment motion seeking damages of $144,814.70 plus pre-judgment interest from October 17, 2017 in accordance with the Courts of Justice Act.[^1] She also sought a dismissal of Mr. Miri’s counterclaim for the return of his $50,000 deposit and damages. I granted Ms. Malatinszky judgment as requested, and I dismissed the counterclaim.[^2]
[2] Ms. Malatinszky was granted a judgment for $144,814.70 plus pre-judgment interest of $9,664.89 for a total of $154,479.59. This judgment exceeded an Offer to Settle that had been served on June 17, 2019 for $133,000.00 inclusive of damage, pre-judgment interest and costs.
[3] Rule 49.10 (2) provides that where the plaintiff obtains a judgment more favourable than the terms of the offer to settle then the plaintiff is entitled to partial indemnity costs to the date the offer to settle was served and substantial indemnity costs from that date, unless the Court orders otherwise.
[4] Ms. Malatinszky is claiming costs of $19,822.64, all inclusive. The Plaintiff is claiming substantial indemnity fees at $350.00 per hour and partial indemnity fees at 65% of that or $227.50. The total fees are $13,335.00, before HST. The disbursements are $4,754.09.
[5] Mr. Miri submits that he has recently been experiencing health problems that have resulted in retirement from his business as a builder of homes. His ability to earn income in the future has been reduced, and for this reason, he respectfully requests an indulgence from the Court and submits that, in the circumstances, it would not be contrary to the administration of justice to award costs on a partial indemnity scale from the date the offer to settle was served to the date of the costs award.
[6] I am not persuaded that the costs award should be reduced. It will be for Ms. Malatinszky, not the court to grant indulgences, if any, for the unfortunate circumstances of Mr. Miri.
[7] The claim for costs is reasonable in all the circumstances. I order costs to Ms. Malatinszky as requested.
Perell, J.
Released: February 28, 2020
COURT FILE NO.: CV-18-610391-0000
DATE: 2020/02/**
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KATALIN MALATINSZKY
Plaintiff
- and -
AHMAD MIRI
Defendant
REASONS FOR DECISION - COSTS
PERELL J.
Released: February 28, 2020
[^1]: R.S.O. 1990, c. 43.
[^2]: Malatinszky v. Miri, 2020 ONSC 16