Court File and Parties

Court File No.: CV-19-632538 Date: 2020/04/29 Ontario Superior Court of Justice

Between: 6791971 CANADA INC., Applicant - and - ELI MESSICA, Respondent

Counsel: Obaidul Hoque and Zaheed Moral, for the Applicant Lawrie Jacques, for the Respondent

Heard: In writing

Before: Perell, J.

Reasons for Decision - Costs

[1] In an Application pursuant to s. 23 of the Commercial Tenancies Act, R.S.O 1990, c. L.7, 6791971 Canada Inc. (the “Tenant”) sought a determination as to whether the Respondent Landlord, Eli Messica, unreasonably withheld his consent to an assignment of a lease to a new tenant, Moksha Enterprise Ltd. I granted the Application. 6791971 Canada Inc. v. Messica, 2020 ONSC 1642.

[2] The Tenant seeks partial indemnity costs of $18,417.86, which is inclusive of taxes and includes disbursements of $789.86.

[3] Apparently, had it been successful, the Landlord’s partial indemnity claim for costs would have been $10,356.45, and it submits that the time expended by the Tenant’s lawyer was therefore excessive. For various reasons, the Landlord seeks reductions for the time expended by the Tenant’s lawyers. It submits that the appropriate award of partial indemnity costs would be $10,356.45.

[4] For examples of the submitted reductions: a. the Tenant claims 18.4 hours for drafting the Notice of Application, and the two affidavits of Mr. Rahman, but the Landlord submits that 10.5 hours should be allowed for this part of the work; b. the Tenant claims 12.4 hours for attendance at the cross-examinations of Mr. Rahman and Mr. Messica, but the Landlord submits that 11 hours, which is the amount of time its lawyer allocated for the cross-examinations, should be allowed for the cross-examinations; and c. the Tenant claims 14.6 hours for review of the transcript of Mr. Messica's cross-examination, research, and preparation of the factum and reply factum and book of authorities, but the Landlord submits that 10.5 hours, which is the amount of time its lawyer allocated for these items, should be allowed.

[5] The Tenant’s lawyer’s hourly rate was the modest sum of $195, and I am not persuaded that the time expended for what was an extremely important matter for the Tenant was excessive.

[6] When the Landlord refused its consent to the assignment of the commercial lease, it was inevitable that there would be litigation, and an expenditure of $18,417.86 for legal expenses is well within what is reasonable expenditure and within the reasonable expectations of the unsuccessful party to the litigation.

[7] I, therefore, award the Tenant the costs as requested.

[8] In the circumstances of the Covid-19 emergency, these Reasons for Decision are deemed to be an Order of the court that is operative and enforceable without any need for a signed or entered, formal, typed order.

[9] The parties may submit formal orders for signing and entry once the court re-opens; however, these Reasons for Decision are an effective and binding Order from the time of release.

Perell, J. Released: April 29, 2020