Court File and Parties
COURT FILE NO.: CV-17-25465
DATE: 20200602
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
1352194 ONTARIO INC. carrying on business as LGL CONSULTING
Plaintiff
– and –
ESSEX CONDOMINIUM CORPORATION NO. 1, PATRICIA FLETT, REMLAP BUILDING SERVICES INC., CHRIS PALMER, DAYUS ROOFING
Defendants
Counsel:
Eric Florjancic, for the Plaintiff
Robert Reynolds, for the Defendants Essex Condominium Corporation No. 1 and Patricia Flett
Merrill Baker, for the Defendants Remlap Building Services Inc. and Chris Palmer
Colin Bondy, for the Defendant Dayus Roofing
HEARD: By written submissions
COSTS ENDORSEMENT
Tranquilli J.
[1] By decision released April 7, 2020, I dismissed the defendants’ motions for summary judgment dismissing the plaintiff’s claims. I invited cost outlines and written submissions from the parties in the event they were unable to resolve the issue of costs. I received written submissions from the plaintiff and the defendants Essex Condominium Corporation No. 1 and Patricia Flett (“the Condominium defendants”); however, no cost outlines were received from the parties.
[2] In its submissions, the plaintiff advised it resolved its action against the defendants Remlap Building Services Inc., Chris Palmer and Dayus Roofing after the motion. No particulars of that settlement as it may relate to the motion were disclosed by the plaintiff.
[3] As the successful party on the motion, the plaintiff seeks costs of $11,000, inclusive of disbursements and applicable taxes payable by the Condominium defendants. The plaintiff reports it incurred actual costs of $18,310, including disbursements. The substantial indemnity rate $14,669.15 and partial indemnity rate is $11,028.66. The plaintiff submits that costs of $11,000 inclusive of disbursements and applicable taxes is a fair and reasonable amount in light vigorous response required to the summary judgment motion, involving substantial evidence and a two-day hearing. The plaintiff also argues the summary judgment motion was inappropriate as this is a simplified procedure action. The motion has simply added costs to the proceeding and delayed trial.
[4] The Condominium defendants submit costs should not be awarded due to the plaintiff’s conduct as it relates to pleading deficiencies or should be awarded in the cause. They argue the costs sought are excessive and do not reflect reasonable expectations as to potential liability to costs as the hearing considered three summary judgment motions brought by all defendants. The lack of any particulars regarding the settlement with the other defendants raises a concern the plaintiff now seeks to “hoist” the Condominium defendants with sole responsibility for the motion costs.
[5] In that vein, the Condominium defendants alternatively submit that a reasonable amount would be one-third of the partial indemnity rate, meaning a range between $3,000 and $3,500.
[6] Both parties rely on Boucher v. Public Accountants Council (Ontario), 2004 CanLII 14579 (ON CA) for the proposition that the overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances.
[7] Costs are in the discretion of the court: s. 131, Courts of Justice Act; r. 57.01, Rules of Civil Procedure. Generally, costs follow the event and are payable within 30 days on a partial indemnity basis. However, in the appropriate circumstances, discretion can be exercised by the court to depart from this general rule: Gafny v. Vainshtein, 2010 ONSC 4030 at para. 4.
[8] In these circumstances, I conclude this case falls within the exceptional class of cases where costs in the cause is warranted: Gafny, supra; Urbanski v. Corporation of the Township of Ramara, 2016 ONSC 1799; The merits of the case have yet to be adjudicated. The productions, affidavits and other work product will have further use as part of the evidentiary record at trial and should serve to focus the evidence at trial and expedite any remaining pre-trial steps. The credibility issues and conflicting evidence raised in the motion is to be resolved at trial where cross-examination on the parties’ affidavit evidence can take place. Although the unavailability of cross-examination inhibited the summary judgment process, I accept that in the circumstances of the pleading issues it was not unreasonable for the Condominium defendants to pursue the motion.
[9] I accordingly order costs in the cause.
Justice K. Tranquilli
Released: June 2, 2020
COURT FILE NO.: CV-17-25465
DATE: 20200602
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
1352194 ONTARIO INC. carrying on business as LGL CONSULTING
Plaintiff
– and –
ESSEX CONDOMINIUM CORPORATION NO. 1, PATRICIA FLETT, REMLAP BUILDING SERVICES INC., CHRIS PALMER, DAYUS ROOFING
Defendants
costs endorsement
Tranquilli J.
Released: June 2, 2020