Court File and Parties

COURT FILE NO.: CV-14-507732

DATE: 2020-04-21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AMAR NIJJAR, Plaintiff

AND: LORNE FELDMAN, 1602724 ONTARIO INC and FELDMAN TIMBER COMPANY, LTD Defendants

BEFORE: Sossin J.

COUNSEL: Daniel Murdoch, Counsel for Plaintiff Jonathan Lancaster, Counsel for the Defendants

COSTS ENDORSEMENT

OVERVIEW

[1] This action was brought by Amar Nijjar (“Nijjar”), a commercial mortgage broker and consultant against Lorne Feldman (“Feldman”) as well as his real estate holding company, 1602724 Ontario Inc. (“160 Co.”) and the operating company of main tenant on the property, Feldman Timber Company Ltd. (“Feldman Timber”), a family business run by Feldman (collectively, the “defendants”).

[2] Nijjar alleged that Feldman owed him $100,000 and related remedies, pursuant to an enforceable contract, or in the alternative, pursuant to the doctrine of unjust enrichment and the remedial principles of quantum meruit.

[3] The trial of the action was heard November 12-13, 2019.

[4] Nijjar was successful in the action, although not with respect to the contractual enforcement argument. I found no contractual obligations existed between Nijjar and any of the defendants. I found there was a basis for recovery, however, under the doctrine of unjust enrichment and the remedial principles of quantum meruit. On that basis, Nijjar was awarded recovery in the amount of $65,000, together with pre-judgment interest from July, 2013 to the date of judgment. The reasons for judgment were released January 30, 2020, and are now published as Nijjar v. Feldman et al., 2020 ONSC 552.

[5] At the end of that judgment, I set out that if the parties could not agree on costs, written submissions on costs would be received within 30 days. The parties were not able to agree on costs.

[6] I received submissions from Nijjar dated March 2, 2020. Nijjar argues that in light of his success at trial, he is entitled to costs on a partial indemnity scale, which would total $41,077.25, inclusive of disbursements and HST.

[7] I received submissions from the defendants dated March 13, 2020, highlighting that Nijjar received exactly what he was offered back in 2013. Had he accepted that offer, the litigation which ensued and all the costs incurred would not have been necessary. The defendants argue costs to the plaintiff of $10,000, all inclusive, would be appropriate.

[8] In Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), the Ontario Court of Appeal stated in the context of the trial judge’s discretion under Rule 57.01 of the Rules of Civil Procedure that (at para. 16), “… if a judge is able to effect procedural and substantive justice in fixing costs, she ought to do so.”

[9] In this case, Nijjar was successful in the action and is entitled to costs. The amount that Nijjar was awarded at trial, however, was equal to the defendants’ highest offer to settle the dispute.

[10] Most of the expense of the trial involved testimony and argument on the existence of a contract between the parties. On this issue, the defendants were successful. At the same time, the trial was also made more complex by the defendants’ arguments relating to Nijjar’s regulatory status as a mortgage broker, which I found did not preclude Nijjar’s recovery under unjust enrichment.

[11] Neither party devoted substantial time to the issues of unjust enrichment and quantum meruit, though Nijjar ultimately was successful on this aspect of the trial.

[12] In these circumstances, I find costs to Nijjar are justified, but should be discounted to reflect the partial nature of his recovery, and the offer by the defendants which formed the basis for the quantum of Nijjar’s recovery.

[13] In light of all the circumstances and the factors set out in Rule 57.01 of the Rules of Civil Procedure, I find Nijjar is entitled to costs in the amount of $20,000.00, all inclusive, payable within 30 days of this endorsement.

Sossin J.

Released: 2020-04-21