COURT FILE NO.: CV-19-00623980-0000
DATE: 20210331
ONTARIO
SUPERIOR COURT OF JUSTICE
APPLICATION UNDER sections 96(3) and 101 of the Courts of Justice Act, R.S.O. 1990, c. C43.
BETWEEN:
HOWARD SZIGETI
Applicant
- and -
CHUNGANG WAN
Respondent
Jasdeep Bal for the Applicant
Yan Wang for the Respondent
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] The Applicant Howard Szigeti owns and lives at 112 Munro Boulevard in the City of Toronto. The Respondent Chungang Wan owns and lives at the adjacent 110 Munro Boulevard.
[2] In this application, Mr. Szigeti sought a mandatory order against Mr. Wan directing him to comply with the Toronto Municipal Code, chap. 629 (Property Standards) by taking all reasonable steps, including installing a snow guard, to prevent snow and ice on the roof at 110 Munro from falling onto the 112 Munro Boulevard property.
[3] The parties settled the litigation, except with respect for the matter of costs. This is my costs decision.
[4] On February 16, 2021, I made the following endorsement/file direction:
This Application came on for a hearing today. The parties have reached a settlement and the only outstanding matter is the matter of costs. If the parties cannot agree about costs, they may make written submissions of no more than 3 pages (excluding any Bill of Costs) beginning with the Applicant’s submissions within twenty days of today, followed by the Respondent’s submissions within a further twenty days.
[5] The Applicant, who was awarded $500 as a term of an adjournment, seeks costs on a partial indemnity basis of $24,026.00 comprised of legal fees of $14,439.00, disbursements of $6,849.29, and $2,737.71 for HST.
[6] The Respondent submits that there should be no order as to costs.
[7] In the immediate case there were no Offers to Settle pursuant to the Rules of Civil Procedure.[^1] I mention this because unlike the situation in the immediate case, rule 49.07 (5) specifies what the court may do when an accepted offer to settle does not provide for the disposition of costs. In the immediate case, the parties did not specify what were the costs consequences of the accepted offer.
[8] Rule 49.07 (5) states:
Costs
(5) Where an accepted offer to settle does not provide for the disposition of costs, the plaintiff is entitled,
(a) where the offer was made by the defendant, to the plaintiff’s costs assessed to the date the plaintiff was served with the offer; or
(b) where the offer was made by the plaintiff, to the plaintiff’s costs assessed to the date that the notice of acceptance was served.
[9] In the immediate case, the Applicant submits that while there was ultimately no determination on the merits, the practical outcome reveals that he was the successful party.
[10] I agree that the Applicant was successful in the sense that he achieved what he sought to pursue by litigation. However, he did not add to this success an agreement from the Respondent that the Applicant was entitled to the costs of the litigation.
[11] Apart from rule 49.07 (5), an award of costs is connected to actual success in the courtroom and in the immediate case, that will remain forever an unknown.
[12] I prepared twice for a hearing of the Application, and my assessment was that both sides had reasonably strong cases, and thus I cannot use predicted success as an indicium of why the Applicant should be awarded costs.
[13] Of course, success is not the only relevant factor in determining whether a party should be awarded costs, but there was nothing in the conduct of the litigation which would justify awarding costs for or against the Applicant or the Defendant.
[14] In these circumstances, I agree with the Respondent that the appropriate award is to make no award as to costs for the Application. The $500 award of costs for the adjournment, however, should be paid.
Perell, J.
Released: March 31, 2021
COURT FILE NO.: CV-19-00623980-0000
DATE: 20210331
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HOWARD SZIGETI
Applicant
- and -
CHUNGANG WAN
Respondent
REASONS FOR DECISION - COSTS
PERELL J.
Released: March 31, 2021
[^1]: R.R.O. 1990, Reg. 194.