Court File and Parties

COURT FILE NO.: CV-19-618679 DATE: 2020-01-07 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: THE CORPORATION OF THE TOWN OF CALEDON, Plaintiff AND: DARZI HOLDINGS LTD., LAYTH RAFAT SALIM AKA CARLO SALIM AND RAFAT GENERAL CONTRACTOR INC., Defendants

BEFORE: Schabas J.

COUNSEL: Melissa Winch and Marisa Keating, for the Plaintiff Bernie Romano and Jordan Nussbaum, for the Defendants

HEARD: September 9, 2019

COSTS ENDORSEMENT

[1] On September 12, 2019, I released Reasons granting the Town of Caledon orders against the defendants to enforce zoning bylaws and property rights. The Town was successful, and now seeks its costs. The defendants, on the other hand, say the motion was unnecessary as the defendants had made proposals to achieve what was ultimately ordered, and submit that they should be awarded costs.

[2] The plaintiff seeks costs on a partial indemnity basis in the amount of $75,399.23, plus costs thrown away on a full recovery basis of $18,701.50, for a total of $94,100.73. These amounts are inclusive of HST and disbursements.

[3] The defendants’ partial indemnity bill is for just under $50,000.00, but they submit an appropriate award, to them, would be $25,000.00.

[4] The Court has a broad discretion when determining the issue of costs. Rule 57.01(1) sets out factors to be considered to achieve a result that is fair and reasonable for the unsuccessful party to pay: Boucher v. Public Accountants Counsel for Ontario, 2004 14579 (ON CA), 2004 14579 (Ont. C.A.). I have had regard to those factors in reaching the conclusions set out below.

[5] In my view, the plaintiff was successful on the motion and is entitled to costs. The Town is not to be faulted for seeking to enforce its bylaws and property rights, in the public interest. Although the defendants claimed to have stopped using the road in advance of the motion, the issue over the fence was raised quite late, and the clean-up order confirmed an agreement made between the parties, given the long history of disputes over the use, and misuse, of these lands, I find that the Town acted properly in bringing the motion for the relief sought when it did, and there is no basis to find that the motion was unnecessary which would deny the Town its costs, let alone justify an award of costs to the defendants.

[6] The issue, then, is to determine the appropriate scale and quantum.

[7] The partial indemnity amount sought of $75,399.23 is higher than the defendants’ figure of $50,000.00. But the Town, as applicant, would likely have higher costs. In my view, an appropriate amount for partial indemnity costs is $60,000.00. As for the claim for costs thrown away, it appears that there were unnecessary costs incurred due to the defendants’ conduct for which the plaintiff is entitled to some reimbursement. I award those costs on a partial indemnity basis in the amount of $11,220.90.

[8] Accordingly, the plaintiff shall be awarded costs of the motion in the total amount of $71,220.90, inclusive of HST and disbursements.

Schabas J.

Date: 2020-01-07