Court File and Parties

Court File No.: 13-476840 Date: 2020-09-23 Superior Court of Justice - Ontario

Re: 1875169 Ontario Limited, Plaintiff And: Luigi Santaguida also known as Louie Santaguida, Terrasan Development Corporation, Terrasan Corporation, Premier Equipment Rental Solutions Ltd., 1711095 Ontario Limited, Marylou Santaguida and Jeff Usher, Defendants

Before: Schabas J.

Counsel: Brett Moldaver, Counsel for the Defendants/Appellants John Lo Faso, Counsel for the Plaintiff/Respondent

Heard: August 25, 2020, in writing

Costs Endorsement

[1] I released Reasons on this appeal on August 26, 2020: 1875169 Ontario Ltd. v. Santaguida et al., 2020 ONSC 5094. The successful plaintiff/respondent now seeks costs.

[2] The respondent submits that costs should be granted on a substantial indemnity scale due to what it describes as delays by the defendants/appellants in pursuing the appeal, and therefore delaying the action from proceeding. The appellants, on the other hand, dispute being the cause of delay, and argue that the plaintiffs were seeking an indulgence such that no costs should be awarded citing, among other cases, Scaini v. Prochnicki, 2007 ONCA 63, 85 O.R. (3d) 179. at para. 30.

[3] The Court has a broad discretion when determining the issue of costs. Generally, however, we have a loser-pay system. As well, the overall objective is to fix an amount 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, 2004 14579 (ON CA), 2004 14579 (Ont. C.A.).

[4] In my view, there is no basis to depart from the loser-pay approach here. The respondent sought its indulgence from the Registrar, and obtained it from the Master, who did not award costs. However, this appeal was brought by the defendants/appellants, who were not seeking an indulgence but, rather, seeking to overturn a decision of a Master, and should expect to pay costs if unsuccessful.

[5] I am not satisfied that there has been undue delay or conduct that would justify awarding costs on a substantial indemnity basis, which is reserved for exceptional circumstances.

[6] As to quantum, the amount sought for this appeal on a partial indemnity basis, $8,385.74 inclusive of disbursements and HST, is reasonable and in the range of what the defendants ought to have expected to pay if unsuccessful.

[7] Accordingly, I award costs to the plaintiffs/respondents in the amount of $8,385.74, inclusive of disbursements and HST.

Paul B. Schabas, J.

Date: September 23, 2020