COURT FILE NO.: CV-16-1477 DATE: 2021-02-18 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 1632093 Ontario Inc. carrying on business as Turn-Key Projects, Plaintiff AND: York Condominium Corporation No. 74, Defendant

BEFORE: Conlan J.

COUNSEL: Michael Simaan/Rahul Gandotra, Counsel for the Plaintiff Antonio Casalinuovo/Taheratul Haque, Counsel for the Defendant

Endorsement on costs

I. Introduction

The Trial, the Judgment, and the Appeal

[1] In October 2019, I presided over a short trial involving the Plaintiff, 1632093 Ontario Inc. carrying on business as Turn-Key Projects (“Turn-Key”), and the Defendant, York Condominium Corporation No. 74 (“YCC 74”). It was a summary trial under Rule 76.12 of the Rules of Civil Procedure. What has transpired since, however, has been anything but summary in nature.

[2] This Court allowed Turn-Key’s Claim, in part. It had sought at trial the principal amount of $96,622.42; it received after trial the principal amount of $61,429.10. Prejudgment and post-judgment interest were awarded, in accordance with the Courts of Justice Act. No costs were awarded to either side. 1632093 Ontario Inc. v. York Condominium Corporation No. 74, 2019 ONSC 5789, and 1632093 Ontario Inc. v. York Condominium Corporation No. 74, 2020 ONSC 290.

[3] Neither side was satisfied, and both appealed to the Court of Appeal for Ontario. I am not sure why the parties wanted to present to me their respective Notices and Supplementary Notices of Appeal that they filed at Osgoode Hall, given that my task now is a very narrow one, but I suppose that as a result of reviewing those materials I have learned the valuable lesson that there are never too many alleged errors that a trial judge can make.

[4] The appeals were dismissed but for the issue of costs of the trial. It was held that I had erred in determining success on a distributive-costs basis, and that Turn-Key ought to have been considered the successful party at trial. The singular issue of quantum of costs in favour of Turn-Key was remitted back to me for determination. 1632093 Ontario Inc. (Turn-Key Projects) v. York Condominium Corporation No. 74, 2020 ONCA 843.

The Positions of the Parties

[5] Both sides have now filed very extensive written costs submissions.

[6] Turn-Key asks for partial indemnity costs in the amount of $45,922.28, plus another $2000.00 plus HST for the costs submissions themselves, due to YCC 74’s alleged refusal to settle the issue without further Court intervention.

[7] YCC 74 submits that Turn-Key ought to be awarded either no costs or a nominal amount of costs not exceeding $5000.00.

II. Decision

The Basic Legal Principles on Costs

[8] The successful party, Turn-Key, is presumed to be entitled to some costs, and the Court of Appeal for Ontario has already determined that there is no reason to depart from that presumption here. In short, entitlement to costs is not an issue that is before me.

[9] Quantum of costs is largely discretionary. There is no exhaustive list of factors that a court can consider in determining quantum, though the considerations outlined in Rule 57.01(1) are instructive.

[10] The penultimate goal is to make an award that is just, and fair, and reasonable, and proportionate. All of the circumstances should be taken into account, including the reasonable expectations of the unsuccessful side. Boucher v. Public Accountants Council (Ontario), at paragraphs 26 and 38.

The Merits of the Parties’ Positions

[11] Neither party’s position is reasonable, in my respectful view.

[12] Turn-Key wants to be awarded costs that are equal to about 75% of the principal amount of the Judgment. With respect, I do not find that to be a proportionate response.

[13] YCC 74 wants, in the main, no costs to be awarded to Turn-Key. With respect, that is contrary to what the Court of Appeal for Ontario has already decided. I agree with counsel for Turn-Key that this is not the time to relitigate matters already determined.

Rule 57.01(1) of the Rules of Civil Procedure

[14] Applying the factors in Rule 57.01(1), Turn-Key was successful and will be partially indemnified with some costs ordered in its favour. Both trial lawyers, though relatively inexperienced, did a fine job. The hourly rates and the time spent by counsel on both sides were reasonable. I very much doubt that either side could reasonably have expected to pay some $46,000.00 in costs. In the business world, the amount claimed and the amount recovered by Turn-Key were both fairly modest. The apportionment of liability was not what Turn-Key argued for, and the Judgment amounts to a fraction of what Turn-Key requested at trial and an even smaller fraction of what it originally pleaded for. The proceeding was not complex. Many of the facts were agreed upon in advance, and it was a very short trial. The issues were important to both sides but were insignificant to any wider audience. Finally, I do not see this as a case where items (e) through (i) under Rule 57.01(1) are in play.

Degree of Success IS a Relevant Consideration on Quantum

[15] It is very important to keep in mind the following, taken from paragraphs 16 through 19 of the decision of the Court of Appeal for Ontario in Eastern Power Limited v. Ontario Electricity Financial Corporation, 2012 ONCA 366.

[16] Traditionally, costs will be awarded to the successful party. Thus when a party succeeds on appeal, that success ordinarily must be imputed as success at trial. However, on the particular facts of this case, Eastern Power’s success on appeal does not transform it into the successful party at trial. Eastern Power advanced six claims worth a total of approximately $121 million. Five of those six claims were dismissed, and its successful claim is worth, at most, $8.5 million. [1] Despite Eastern Power’s argument to the contrary, OEFC was the overwhelmingly successful party at trial.

[17] Costs should flow from OEFC’s success. In our view, Eastern Power’s success on the narrow issue of the inter-area transmission credit does not detract from that entitlement. Nor does it entitle Eastern Power to an award of costs. It does, however, merit some consideration.

[18] Eastern Power’s limited success should be reflected in the quantum of the award to OEFC. However, this does not mean we are making a distributive costs award. This court has restricted the use of distributive costs awards to the rarest of cases and has noted that “[i]ndividual issues can be dealt with more appropriately under the general discretion and explicit guidance set forth in rule 57.01(1)”: see Armak Chemicals Ltd. v. Canadian National Railway Co. (1991), 5 O.R. (3d) 1, at pp. 8-9; Murphy v. Alexander (2004), 236 D.L.R. (4th) 302.

[19] Thus, the unavailability of a distributive costs award does not preclude the court from considering Eastern Power’s limited success. Indeed, the general principles that govern costs decisions require us to consider the peculiar features of a given case. Therefore, although we would award trial costs to OEFC and decline to award costs to Eastern Power, in doing so, and in arriving at our ultimate order, we have considered Eastern Power’s success on the narrow inter-area transmission credit issue.

[16] In our case, the degree of success enjoyed by Turn-Key after trial was far from complete. The principal Judgment amounts to about 64% of what it asked for at trial, and a smaller fraction, still, of what it originally claimed. In addition, the interest awarded amounts to significantly less than what was requested in Turn-Key’s closing submissions at trial.

[17] Thus, in my view, the partial indemnity costs figure being requested by Turn-Key, approximately $46,000.00, should be discounted.

Order

[18] Given all of the circumstances, I have determined that $25,000.00, total all-inclusive, is a fair, just, reasonable, and proportionate quantum of costs to award to Turn-Key, and thus I order that YCC 74 shall pay that amount of costs to Turn-Key.

(“ Original signed by ”)

Conlan J.

Date: February 18, 2021