Court File and Parties

COURT FILE NO.: CV-20-642116

DATE: 20200929

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 8573123 Canada Inc. o/a Elias Restaurant, Applicant

– AND –

Sheppard-Keele Plaza Ltd and Castlehill Properties Inc., Respondents

BEFORE: E.M. Morgan J.

COUNSEL: Miguna Miguna, for the Applicant

Bruce Bussin, for the Respondents

HEARD: Costs submissions in writing

COSTS ENDORSEMENT

[1] On September 11, 2020, I released my reasons for judgment in this Application, in which I granted relief from forfeiture to the Applicant and enjoined the Respondents from terminating the Applicant’s tenancy: Elias Restaurant v. Keele Sheppard Plaza Inc., 2020 ONSC 5457. The Applicant was successful in obtaining the relief that it sought, and therefore deserves its costs of the Application.

[2] The only question is what scale of costs is applicable here. Counsel for the Applicant submits that costs should be awarded on a full indemnity basis due to the nature of the position taken by the Defendants in the motion. In his written submissions he reiterates the observation that that, “The existence of anti-black racism in Canadian society is not the subject of debate among reasonable people”: Ibid., at para 33. Needless to say, I agree with that statement; it was an essential element of my judgment.

[3] That said, counsel for the Respondent did not exactly take issue with the general proposition that Black businesspeople face racial prejudice, but rather tailored his submissions to the situation of the Respondents themselves and argued that no bias was intended on their part. In response, I indicated that prejudice is found in the conduct of the Respondents regardless of what they might have subjectively intended.

[4] Each side’s counsel put forward their clients’ respective positions as advocates are supposed to do, without unduly inflaming the dispute that was already quite contentious between the parties. In fact, given the nature of the dispute and the understandably strong feelings that it aroused, I was impressed with the level of professionalism and decorum of both counsel. The two lawyers were able to face one of the most difficult problems in Canadian society today – racial prejudice and the need to overcome it – and to present their positions with reason and legal principles.

[5] Courts generally do not look to the losing party’s substantive position as a reason for a punitive level of costs, but rather look to the way in which the losing party conducted the proceeding. Here, Respondents’ counsel put forward his client’s unsuccessful position, but otherwise did nothing untoward or unusual. The matter was handled expeditiously, with no time wasted on unproductive cross-examinations and other procedures. Much as I disagreed with the Respondents’ position, this is not a case for an extraordinary measure such as full indemnity costs.

[6] Counsel for the Applicant has also produced an Offer to Settle that his client made on August 24, 2020. While this was a respectable offer, it does not qualify under Rule 49.10 of the Rules of Civil Procedure as one on which to base an award of substantial indemnity costs. It offered the Respondents less rent per month than they will get under my judgment. The Respondents evidently did not accept the offer, but since in the result they did not do worse than the offer would have given them, it has no particular cost consequences.

[7] Just as Respondents’ counsel did nothing to prompt an unusually high level of costs, Applicant’s counsel did nothing to attract an unusually low level of costs. Applicant’s counsel handled the matter expertly, and I can see from his Bill of Costs that he did so relatively efficiently as well. He seeks $41,794.43, all inclusive, in partial indemnity costs. That is not particularly high for a hard-fought Application in which equitable relief like an injunction is sought. Fully defended and contested litigation is an expensive proposition in today’s world, and cost awards must to some extent reflect the economic reality that parties face.

[8] There were multiple affidavits and a substantial factum with considerable legal research that made up the record. There were also two preliminary appearances by conference call, and a full-day hearing on the merits of the Application. I would not want to second-guess the time that Applicant’s counsel invested in putting together those materials, preparing for the proceeding, and arguing the matter at the hearing. That investment paid dividends, and none of it was wasted.

[9] Counsel for the Respondents does not take any particular issue with the quantum of costs sought by the Applicant, except to argue that the issues in the Application were novel and that in this respect the costs sought are too high. I cannot agree with that submission. The fact that Applicant’s counsel was successful in advancing an argument that is not frequently made in Canadian courts is to his credit, and is not a reason to reduce the costs award.

[10] Costs are always discretionary under section 131 of the Courts of Justice Act. The general principle guiding the exercise of this discretion is that of fairness and reasonableness, with a view to the expectations of the parties and to fostering access to justice: Boucher v. Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 71 OR (3d) 291 (CA).

[11] The figure put forward by Applicant’s counsel for partial indemnity costs satisfies these multiple goals. I see no compelling reason to deviate from that request, except to round off the figure slightly for the sake of convenience.

[12] The Respondents shall pay the Applicant $41,790 in costs, inclusive of all fees, disbursements, and HST.

Date: September 29, 2020

Morgan J.