Court File and Parties
COURT FILE NO.: 20-82580 DATE: 2020/04/06 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ADD-VANCE SERVICE CENTRE LTD and ABDALRAHMAN ALHAZMY, Plaintiffs AND TRILOQ CORP. and EDGAR BRAY, Defendants
BEFORE: Madam Justice Heather J. Williams
COUNSEL: Gib van Ert for the Plaintiffs Richard Bowles for the Defendants
HEARD: In Writing
Costs Endorsement
H. J. Williams J.
[1] The plaintiffs were successful in their motion, which arose from a landlord-tenant dispute. The defendant landlord had locked out the plaintiff tenant. I found the landlord had had no right to do so because it had failed to give the tenant the notice of termination required by the lease.
[2] In addition to their costs of the motion, the plaintiffs have also asked for costs incurred following the release of my decision. The plaintiffs justify this request on the basis that the landlord breached my order. The plaintiffs’ costs submissions were accompanied by an affidavit that described the landlord’s conduct following the release of my decision.
[3] While the plaintiffs may wish to raise the defendants’ conduct at another point in this proceeding, it has no bearing on this decision, which deals with the costs of the motion.
[4] The plaintiffs are asking for costs of the motion of approximately $8,200.00, which includes, roughly, $7,000.00 in fees, $900.00 in HST and $300.00 in disbursements inclusive of HST. The plaintiffs’ lawyer’s actual hourly rate is $400.00; the plaintiffs are asking for $240.00 on a partial indemnity basis.
[5] The defendants argue that the plaintiffs’ costs should be reduced because of the plaintiffs’ conduct. The defendants point to the plaintiffs’ conduct which prompted the landlord to attempt to terminate the lease and the plaintiffs’ efforts to raise the landlord’s post-decision conduct in support of an increased claim for costs. The defendants suggest that a 50 per cent reduction in the amount claimed by the plaintiffs might be appropriate.
[6] Costs are discretionary. The factors I may look to in exercising this discretion, in addition to the result and any written offers to settle, are set out in Rule 57.01 of the Rules of Civil Procedure. The goal is to fix an amount that is fair and reasonable, having regard for, among other things, the expectations of the parties concerning the quantum of costs: Boucher v. Public Accountants Council for the Province of Ontario, [2004] O.J. No. 2634, 71 O.R. (3d) 291 (C.A.) at paras. 26 and 38.
[7] After considering the Rule 57.01 factors and the thrust of the Boucher case, I have concluded that the costs requested by the plaintiffs are reasonable. A comparison of the parties’ bills of costs reveals that both the hours worked and the hourly rate of the defendants’ principal lawyer were comparable to and slightly higher than those of the plaintiffs’ lawyer. In response to the defendants’ arguments for a reduction in the plaintiffs’ costs: (1) I do not propose to reduce the plaintiffs’ costs award because of their pre-motion conduct, although, like the defendants’ post-decision conduct, it may be relevant at another point in this proceeding; and (2) I have denied the plaintiffs’ request for any post-decision costs and I see no reason to penalize them for having made the request.
[8] The defendants submit that any costs award should be in favour of and against only the corporate parties, because they are the parties to the lease. I disagree. In their notice of motion, the plaintiffs sought relief against each the defendants and this relief was granted.
Order with respect to costs
[9] The defendants shall pay the plaintiffs costs of the motion on a partial indemnity scale, fixed in the amount of $8,200.00, all-inclusive.
[10] While typically, in accordance with Rule 57.03(1)(a), I would order that the costs be paid within 30 days, in light of the COVID-19 pandemic, and without evidence of the current circumstances of the parties, I will instead urge counsel to negotiate a fair arrangement for the payment of the $8,200.00. If counsel are unable to do so and require a ruling, they may send a brief joint submission, dealing with the timing of the costs payment only, to my attention at scj.assistants@ontario.ca.