Court File and Parties

Court File No.: CV-19-624668 Date: 2020-05-19 Superior Court of Justice - Ontario

Re: Sobia Zaman, Applicant And: Toronto Standard Condominium Corporation No. 1643, Respondent

Before: Schabas J.

Counsel: Shawn Pulver, for the Applicant Andrea Lusk, for the Respondent

Heard: February 13, 2020

Costs Endorsement

[1] On February 27, 2020, I released my Endorsement dismissing this application: Zaman v. Toronto Standard Condominium Corporation No. 1643, 2020 ONSC 1262. In my reasons, I noted that “no one is free of blame” for the situation that caused the court application. I also noted that while the application was dismissed, I expressed concern that the respondent ought to have done more in earlier years to rectify the issues giving rise to the applicant’s complaints, and that “had the terms of the settlement agreement been disclosed by the respondent in July 2019 and the parties then focused on its enforcement, this application might have been avoided.” This is important context for my consideration of costs.

[2] The respondent seeks costs on a partial indemnity basis of $35,985, including fees and disbursements. The respondent’s costs include fees and disbursements for attending CPC, reviewing the applicant’s record, preparing responding evidence, reviewing applicant’s reply evidence, a full day of cross-examination, ordering and reviewing transcripts, answering undertakings, reviewing the applicant’s lengthy factum, preparing a responding factum and appearing at the full-day hearing. The respondent submits that preparation was appropriately delegated and the time spent and rates charged were reasonable and proportionate. The respondent also says it has “tempered” its request in light of the court’s finding that “no one is free from blame”, but also notes that the applicant “was not willing to accept any compromise offered to her.”

[3] The applicant submits that no costs should be ordered, citing my finding that the respondent ought to have done more at various stages to address the complaints.

[4] Each case, of course, turns on its own facts. Nevertheless, I must make my decision based on the principles and factors that judges must have regard to in awarding costs. Consequently, my overall objective is to fix an amount for costs that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v. Public Accountants Counsel for Ontario. Pursuant to the Courts of Justice Act, s.131(1), the Court has a broad discretion when determining the issue of costs, and in exercising that discretion Rule 57.01(1) of the Rules of Civil Procedure sets out factors to be considered by me. As well, I must have regard to the principle of proportionality in fixing an amount that balances the indemnity principle with the objective of promoting access to justice.

[5] While the applicant is correct that I was critical of the respondent and noted that no one is free from blame, the applicant did bring a court application, which, in the end, I dismissed. While I found fault with the respondent’s lack of action earlier, and that it ought to have disclosed the settlement with 401, I did also note that more recently the respondent has been more responsive and that its position on the issue of use of balconies has been consistent and is not unreasonable. There is also merit to the respondent’s point that the applicant has been uncompromising in her dealings with the respondent.

[6] Having brought a court application, the applicant should reasonably have expected to pay some costs if unsuccessful. I see no reason to depart from that general principle. On the other hand, given the shared blame for the situation, I find the quantum sought by the respondent high, and do not see how its request has been “tempered” by my findings.

[7] In my view, an appropriate amount for costs in these unusual circumstances, and that is an amount that is fair and reasonable for the applicant, is $12,500, inclusive of tax and disbursements.

SCHABAS J. Date: May 19, 2020