COURT FILE NO.: CV-21-00659158-0000
DATE: 20210503
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DR. ARNOLD RABIN
Applicant
- and -
2490918 ONTARIO INC.
Respondent
Marco Drudi for the Applicant
A. Paul Gribilas for the Respondent
Application under Rule 14.05 of the Rules of Civil Procedure and Section 23 of the Commercial Tenancies Act, 1990.
HEARD: In Writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] In an Application pursuant to rule 14.05 of the Rules of Civil Procedure[^1] and s. 23 of the Commercial Tenancies Act, 1990,[^2] the Applicant, Dr. Arnold Rabin, who is a dentist and a tenant in a medical office building, applied to have the court approve an assignment of his lease.
[2] The landlord, the Respondent, 2490918 Ontario Inc., a corporation whose principal is Gil Shcolyar, had allegedly unreasonably refused to consent to the assignment.
[3] I determined that it had not been proven that the landlord had refused its consent. I dismissed Dr. Rabin’s Application without prejudice to it being re-opened before me at a date to be scheduled by me provided that: (a) by April 9, 2021, Dr. Rabin responds - as he may be advised - to 2490918 Ontario Inc.’s request for information as set out in its litigation counsel’s letter of March 23, 2021; (b) by April 23, 2021, 2490918 Ontario Inc. does not consent to the assignment of the lease; and, (c) by April 30, Dr. Rabin serves his notice of motion and supporting affidavit to re-open the Application.[^3]
[4] In my decision, I directed that if the parties cannot agree about the matter of costs, they may make submissions in writing.
[5] After my decision, Dr. Rabin began the process of providing financial information to determine whether the Landlord would or would not consent to the assignment of the lease. This process was interrupted when the proposed new tenants withdrew from the transaction and Dr. Rabin’s opportunity to return to court, if necessary, became a moot issue.
[6] The Landlord requests costs on a substantial indemnity basis of $24,797.26, all inclusive, or $21,854.16, all inclusive, on a partial indemnity basis.
[7] Dr. Rabin submits that in the unusual circumstances of the case (which are described in my Reasons for Decision), the appropriate order is that there should be no order as to costs. In the alternative, he submits that if there is to be a costs award, the award should be $12,763.31, all inclusive on a partial indemnity basis.
[8] Although not for the reasons expressed by Dr. Rabin in his costs submissions, I agree that the appropriate order in the immediate case is that each party should bear their own costs.
[9] Although the landlord was technically the successful party, the direction in my decision that the dismissal order was without prejudice to Dr. Rabin returning to the court reveals that the decision was far from a vindication of the legal position of the landlord. There is certainly no basis for a substantial indemnity award.
[10] The litigation conduct of both parties, which was driven by mistrust of one another, was not laudatory. Had I made a more definitive order, I would not have awarded costs to the successful party whomever that might have been.
[11] In the exercise of my discretion to award costs, in the circumstances of the immediate case, I make no Order as to costs.
Perell, J.
Released: May 3, 2021.
COURT FILE NO.: CV-21-00659158-0000
DATE: 20210503
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DR. ARNOLD RABIN
Applicant
- and -
2490918 ONTARIO INC.
Respondent
REASONS FOR DECISION - COSTS
PERELL J.
Released: May 3, 2021.
[^1]: R.R.O. 1990, Reg. 194. [^2]: R.S.O. 1990, c. L.7. [^3]: Rabin v. 2490918 Ontario Inc., 2021 ONSC 2388