Court File and Parties

COURT FILE NR. CV-20-84874

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Joseph O’Regan, Plaintiff

AND:

Carleton Condominium Corporation 169, Apollo Property Management Ltd. and Joseph Muchmore, Defendants

BEFORE: Master Kaufman

COUNSEL: Joseph O’Regan, representing himself Rodrigue Escayola and Graeme MacPherson, for the Defendants

HEARD: In writing

COSTS ENDORSEMENT

[1] On February 4, 2021, I dismissed Mr. O’Regan’s motion for partial summary judgment and invited the parties to make written submissions on costs if they could not reach an agreement. I received their costs submissions within the timetable I provided.

[2] Approximately three years ago, Mr. O’Regan left his eggs cooking on the stove unattended. The burning pot set off the fire alarm, and some smoke reached the hallway. In his summary judgment motion, Mr. O’Regan challenged his condominium corporation’s (the “Corporation”) right to charge him for damage to the condominium’s common elements.

[3] The Corporation was entirely successful in defending against Mr. O’Regan’s motion. I concluded that its lien was registered in a timely manner and that the Corporation was not required to bring an application under s. 134 of the Condominium Act (the Act) and mediate before charging him for remediation work.

[4] The Corporation claims $20,357 in costs. It relies on the Corporation’s indemnity provision, section 85 of the Act, and its offers to settle. It points out that Mr. O’Regan could have paid the lien under protest which would have discharged the lien and avoided all these legal costs.

[5] I have a lot of sympathy for Mr. O’Regan’s situation. He is 70 years old, and of modest means. His income last year was $8,689. He is of the firm opinion that the Corporation’s remediation work was excessive and unwarranted, and intends to pursue this action notwithstanding that his arguments on his partial summary judgment motion were rejected. He attempted to negotiate with the Corporation to discharge the lien, and prevent foreclosure, but no agreement could be reached. His lender refused to renew his mortgage and recently commenced an action against him. He has since listed his condo for sale.

[6] Mr. O’Regan submits that the Corporation’s legal costs are excessive in that the time distribution between senior and junior counsel is almost equal. Mr. O’Regan also urges the Court to consider that his claim may be valid and that the costs should be deferred to trial.

[7] Costs in condominium cases are treated differently than in other types of litigation. The Act’s framework seeks to protect innocent unit holders from shouldering the financial burden caused by defaulting owners. In Carleton Condominium Corporation No. 396 v. Burdet,[^1] this Court held that the Act’s clear intent is that a condominium corporation’s reasonable costs should be awarded on a full indemnity scale.[^2]

[8] I have reviewed the Corporation’s costs outline. Its full indemnity costs, after deducting a $2,000 discount, amounts to $18,357.[^3] The motion was at the lower end of medium complexity, the issues were important for the Corporation, and the Corporation acted appropriately in this litigation. I do not place much weight on the offers to settle because these offers required Mr. O’Regan to abandon his action entirely, and the action has not yet been determined. I agree with Mr. O’Regan that senior and junior counsel spent a similar amount of time on the file, and I am prepared to reduce the hours to account for some duplication. I fix the Corporation’s costs at $13,500 all-inclusive, which I assess to be its reasonable full indemnity costs.

[9] Rule 57.03 provides that on hearing a contested motion, the court shall fix the costs of the motion and order them to be paid within 30 days unless the court is satisfied that a different order would be more just. I find that it would be more just to have the costs paid at the end of the proceeding. Mr. O’Regan could ultimately be successful in the action and requiring him to pay the costs forthwith could deprive him of his day in court.

[10] I order that the Corporation’s costs of the motion are fixed at $13,500, payable to the Corporation in any event of the cause.

“Original signed by”

Master Kaufman

Date: March 31, 2021

[^1]: 2015 ONSC 1361. [^2]: Ibid, at para 98. [^3]: The Costs Outline incorrectly calculates the total to be $20,357.00.