Court File and Parties

COURT FILE NO.: CV-20-621 DATE: 2020/06/12 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: 2261358 Ontario Inc., Applicant AND: Peter Kompter, Respondent

BEFORE: Justice G. E. Taylor

COUNSEL: Sandra Watson, Counsel for the Applicant Peter Kompter, In Person

HEARD: May 8, 2020

Cost Endorsement

[1] On May 8, 2020, I granted an interlocutory injunction in favour of the applicant. I requested written submissions with respect to costs. Counsel for the applicant has filed written submissions but the respondent has not. The cost submissions of the respondent were to have been filed electronically by May 22, 2020. I am therefore proceeding to fix the costs of the applicant based on the applicant’s written submissions only.

[2] The applicant seeks an award of substantial indemnity costs in the amount of $32,500 inclusive of disbursements and HST. Alternatively, the applicant seeks an award of partial indemnity costs in the amount of $25,236.58 inclusive of disbursements and HST.

[3] In the Notice of Application, the applicant sought:

a) a declaration that it was not in default under a lease between it and the respondent; b) alternatively, relief from forfeiture; c) an order that the applicant be permitted immediate access to the leased premises; d) an order that the eviction notice be removed; e) an injunction restraining the respondent from re-entry to the leased premises; f) an order that the respondent repair all damage to the leased premises caused by his re-entry; g) an order allowing the applicant to register notice of the lease on title to the property; and h) payment by the respondent in amounts to be determined to compensate the applicant for rent and utility payments while excluded from the leased premises, compensation for the damage to the applicant’s reputation and goodwill, compensation for the loss of perishable food products, compensation for lost profit and punitive damages.

[4] As a result of the suspension of the operations of the Ontario Superior Court due to the COVID-19 pandemic, this matter was placed before Reid J. sitting as triage judge. He determined that certain aspects of the relief sought in the application were urgent and accordingly permitted “the request for interim relief permitting the re-entry of the applicant to the premises and enjoining the respondent from further re-entry, and permitting registration of the lease on title to the premises” to be heard on an urgent basis.

[5] I make these comments regarding the relief sought in the Notice of Application and the claims permitted by Reid J. to be argued on an urgent basis to demonstrate that the costs that I am about to fix are with respect to the interim motion heard on an urgent basis. I am not dealing with costs of the entire application.

[6] From the applicant’s Bill of Costs, it appears to me that the applicant is seeking an award of costs in relation to preparing and issuing the Notice of Application and supporting affidavit. In my view these costs will be dealt with at the conclusion of this proceeding. They are not costs strictly attributable to the limited relief sought on an interim basis as permitted by Reid J. Similarly, I do not consider costs in relation to arranging for issuance of the Notice of Application and service of the Application Record to be costs of the interim proceeding.

[7] Counsel for the applicant was well prepared for the oral argument which was heard virtually. However, the matter was dealt with in less than half a day.

[8] I disagree with the applicant’s position that it is entitled to elevated costs for the interim motion. The respondent was unsuccessful and that is why he will be ordered to pay costs to the applicant.

[9] In Gerula v. Flores, [1995] O.J. No. 2300, the Court of Appeal articulated three principles in relation to an award of costs on an elevated scale which are of relevance to the present case. They are as follows:

a) elevated costs will only be awarded in rare and exceptional cases; b) a respondent is entitled to defend an application and to put the applicant to the proof of its case; c) where a respondent’s acts are a deliberate attempt to frustrate the proceedings by fraud or deception, where the conduct of the respondent is calculated to harm the applicant, or where the unreasonable conduct of the respondent compounds the complexity of the proceedings, there are proper grounds to order elevated costs (see paragraph 79).

[10] In Davies v. Clarington (Municipality), 2009 ONCA 722, the Court of Appeal stated that elevated costs should only be awarded on a clear finding of reprehensible conduct on the part of the party against which the cost award is being made (see paragraph 40).

[11] I am mindful that the respondent made a vulgar remark at the end of submissions after being advised that the relief sought by the applicant would be granted. I do not condone such conduct. However, that alone is not sufficient to justify an award of costs on a substantial indemnity basis. Should such conduct continue it may support an award of elevated costs at the conclusion of this proceeding.

[12] One of the factors set out in Rule 57.01 (1) of the Rules of Civil Procedure to be considered when dealing with the issue of costs of a proceeding is the amount of costs that an unsuccessful party could reasonably expect to pay. In my view, the unsuccessful respondent, in this case, for this step in the proceeding, would not reasonably expect to pay substantial indemnity costs of $32,500 or partial indemnity costs of approximately $25,000.

[13] Another factor contained in Rule 57.01 is the importance of the issues. In my view, obtaining access to leased premises from which it had improperly excluded was a matter of significant importance to the applicant.

[14] It is difficult to determine from the applicant’s Bill of Costs what legal services can be attributed directly to the motion for an interlocutory binding injunction and what is in relation to the application generally.

[15] My role is to fix an amount to be awarded to the applicant for the costs of the motion for the interlocutory injunction which is fair and reasonable.

[16] I have therefore come to the conclusion that the respondent will be ordered to pay to the applicant for the cost of the proceedings before Reid J. and me the sum of $10,000 for partial indemnity fees plus HST of $1,300. The disbursements related to filing the Notice of Application and serving the Application Record are not directly related to the motion but are rather costs related to all the relief claimed in the Notice of Application. They are properly considered at the conclusion of the proceeding. I will arbitrarily attribute approximately one half of the disbursements for photocopying and binding to the present motion. The balance of the disbursements for photocopying and binding are costs to be dealt with at the conclusion of the case.

[17] Therefore, there will be an order that the respondent pay to the applicant the following costs in relation to the motion for the interlocutory injunction:

Fees $10,000 HST on fees $ 1,300 Disbursements including HST $ 175 Total $11,475

These costs are to be paid within 30 days.

G.E. Taylor, J. Date: June 12, 2020