Court File and Parties

COURT FILE NOS.: CV-20-00652453-0000 CV-21-00654472-0000

DATE: 20210614

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AUGEND 6285 YONGE VILLAGE PROPERTIES LTD.

AND:

THE TIRE PIT INC. and MICHAEL GOLDLIST

AND RE: THE TIRE PIT INC.

AND:

AUGEND 6285 YONGE VILLAGE PROPERTIES LTD. and CHARLES BULMER

BEFORE: VERMETTE J.

COUNSEL: Terry Corsianos and George Corsianos, for the Applicant/Respondent Augend 6285 Yonge Village Properties Ltd.

Bernard Gasee and Derek Ketelaars, for the Respondent/Applicant The Tire Pit Inc.

Harvey Ash, for the Respondent Michael Goldlist

Brent Cumming, for the Respondent Charles Bulmer

HEARD: June 14, 2021

ENDORSEMENT AS TO COSTS

[1] On May 21, 2021, I released reasons for judgment in these applications. The parties were not able to agree on costs and have delivered costs submissions and bills of costs.

The Parties’ Positions

[2] The Tire Pit Inc. (“Tire Pit”) was largely successful in both applications. It seeks costs on a substantial indemnity basis in the amount of $63,588.00 ($41,872.50 on a partial indemnity basis). Tire Pit has included in its submissions a list of criticisms of the conduct of both Augend 6285 Yonge Village Properties Ltd. (“Augend”) and Charles Bulmer. It submits that costs should be awarded against them jointly and severally.

[3] While his role was not as central as Tire Pit’s, Michael Goldlist was also successful. Like Tire Pit, Mr. Goldlist argues that the appropriate scale of costs is substantial indemnity. He asks for costs as against Augend in the amount of $52,842.09 ($36,229.22 on a partial indemnity basis).

[4] Augend takes the position that there should be no costs awarded as against it, and that any costs awarded in favour of Tire Pit and Mr. Goldlist should be ordered to be paid by Mr. Bulmer. Among other things, Augend argues that: (a) it was successful in obtaining an order to compel Tire Pit to attend arbitration to settle the issue of the new rent; (b) Tire Pit’s claim for damages was dismissed in its application; and (c) Mr. Goldlist abandoned his claim that numerous paragraphs from Augend’s affidavits should be struck. In the alternative, Augend requests that the payment of any costs ordered to be paid by Augend should be deferred until the arbitrator renders their decision with respect to the rent payable for the lease renewal period. Augend also argues that if any costs are awarded in favour of Tire Pit and Mr. Goldlist, they should not be in excess of $20,000 (all inclusive) for either of the two parties. Augend’s Costs Outline shows that its costs are in the amount of $37,016.10 on a partial indemnity basis, and $53,342.34 on a substantial indemnity basis.

[5] Mr. Bulmer does not appear to have circulated a bill of costs to other counsel, despite my direction to the contrary at the end of the hearing. He did not include a bill of costs with his costs submissions. Mr. Bulmer submits that no circumstances exist in the application that should attract costs on a substantial indemnity basis. He argues that Tire Pit was only partially successful in its application and points out that the Court ordered Augend and Tire Pit to submit to arbitration to determine the base rent. Mr. Bulmer also argues that he should not be ordered to pay costs to Augend. He states that Augend “was fixed with knowledge of [Mr. Bulmer’s] evidence at the conclusion of Bulmer’s cross-examination”, but “decided to continue to pursue a position of non-renewal of the lease up to the and through the Application.”

Discussion

[6] As a preliminary matter, I wish to point out that Tire Pit’s costs submissions were longer than permitted under my reasons for judgment. In addition to its three-page costs submissions, it added a three-page “prefix” to its costs submissions, which was largely repetitive. This is not acceptable – page limits must be respected by all parties.

(a) Entitlement to Costs

[7] In my view, Tire Pit and Mr. Goldlist are entitled to costs. They were the successful parties. The order requiring Tire Pit to submit to arbitration to determine the base rent was not resisted and was arguably unnecessary as the obligation to submit to arbitration is set out in the lease. While I did not rule on Tire Pit’s claim for damages in the context of Tire Pit’s application, this claim has not been determined on the merits and very little time was spent on this issue. The only reason why the claim for damages was included in the application was Augend’s insistence to have this matter proceed by way of application instead of action, which was Tire Pit’s preferred way. Finally, the fact that I did not deal in my reasons with the issues raised by both Tire Pit and Mr. Goldlist regarding the propriety of paragraphs included in Augend’s affidavits does not mean that their arguments had no merit. It was simply unnecessary for me to deal with this issue given my view of the case.

[8] Further, I see no reason to defer the payment of costs ordered to be paid by Augend until the arbitrator renders their decision with respect to the rent payable for the lease renewal period. The issue before the arbitrator is unrelated to the issues decided in these applications. Tire Pit and Mr. Goldlist were successful and are entitled to receive payment of their costs of the applications within 30 days.

(b) Scale of Costs

[9] Substantial indemnity costs are only warranted in rare and exceptional cases where a party has engaged in behaviour worthy of sanction, such as where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties: Davies v. Clarington (Municipality), 2009 ONCA 722 at paras. 28-33. In my view, the conduct of Augend and/or Mr. Bulmer in this case does not rise to the egregious level required to award costs on a substantial indemnity basis. While Augend’s conduct of the litigation could be described as somewhat aggressive, hard-fought litigation is insufficient to justify an elevated costs award: see Davies v. Clarington (Municipality), 2009 ONCA 722 at paras. 42-45.

(c) Quantum

[10] I reject Augend’s submission that costs should be ordered in the amount of $20,000.00, all inclusive, for each Respondent. Given the costs incurred by Augend itself, I do not think that it can credibly argue that, as an unsuccessful party, it could not reasonably expect to pay more than $20,000.00 per Respondent in relation to these applications. This is especially the case since all parties were represented by senior counsel, a number of cross-examinations were held, and there was a lot at stake for Tire Pit and Mr. Goldlist.

[11] In light of the parties’ bills of costs and the factors set out in Rule 57.01(1) of the Rules of Civil Procedure, and taking into account potential duplication of work and inefficiencies in the time spent, I find that the following all-inclusive partial indemnity amounts are fair and reasonable: $36,000.00 for Tire Pit and $31,000.00 for Mr. Goldlist.

(d) Liability for Costs

[12] Augend is solely responsible for the payment of Mr. Goldlist’s costs. It was Augend’s decision to include Mr. Goldlist as a Respondent in its application, and Mr. Bulmer was not a party to Augend’s application.

[13] As for Tire Pit’s costs, my view is that Augend and Mr. Bulmer should be jointly and severally responsible to pay them. I will not repeat the criticisms of Mr. Bulmer’s conduct of the litigation set out in my reasons (e.g., swearing of his affidavit despite major memory and cognitive issues, failure to answer undertakings, etc.). In addition, his and his lawyer’s conduct and statements were the source of many of the problems in this case. However, Augend cannot put all the blame on Mr. Bulmer. Despite serious evidentiary weaknesses and issues, Augend decided to advance its case in an aggressive fashion and to raise many technical arguments.

Conclusion

[14] Accordingly, Augend and Charles Bulmer are ordered, on a joint and several basis, to pay costs to Tire Pit in the amount of $36,000.00 (inclusive of fees, disbursements and HST), payable within 30 days.

[15] Further, Augend is ordered to pay costs to Michael Goldlist in the amount of $31,000.00 (inclusive of fees, disbursements and HST), payable within 30 days.

Vermette J.

Date: June 14, 2021