COURT FILE NO.: 19-139566

DATE: 20210705

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

BRIAN GLENN PROWSE and PAMELA ELLEN PROWSE

Plaintiffs

– and –

SAMIR NOROOZI

Defendant

J.M. Sanderson, for the Plaintiffs

A. Kamyam, for the Defendant

HEARD in writing and via Zoom: June 30, 2021

McCARTHY J.

Decision oN pre-judgment interest and costs

[1] The parties return before me on the twin issues of pre-judgment interest and costs. I received both written submissions and brief oral submissions from the parties.

[2] In reasons released on May 4, 2021, I granted judgment to the Plaintiffs in the amount of $806,380.59. That judgment was comprised of $750,000.00 representing general damages for breach of contract and a further $56,380.59 for special damages.

Pre-Judgment Interest (“PJI”)

[3] The Statement of Claim in this matter was issued on March 12, 2019. The applicable PJI rate is 2.0% per annum.

[4] The cause of action began to run on December 7, 2018 when the Defendant failed to close the Agreement of Purchase and Sale (“the APS”).

[5] The 2.0% rate of interest yields an annual return on $750,000.00 of $15,000.00 which in turn results in a per diem of $41.10.

[6] There were 856 days between the date when the cause of action arose and the date of the judgment. Multiplying the per diem entitlement to the number of days produces a PJI entitlement of $35,178.08 on the general damages component of the judgment.

[7] I agree with the Plaintiff that selecting a start date when all the special damages were identified and quantified is appropriate for a PJI calculation on that head. I find that the start date should be April 16, 2020 (the new proposed closing date). There were 361 days between that date and the special damages award of $56,380.59. Using a per diem of $3.01, the PJI entitlement on those special damages amounts to $1,115.25.

[8] The Plaintiff is therefore entitled to recover a total of $36,293.33 for PJI.

Costs

The Plaintiffs’ Position

[9] The Plaintiffs seek costs of the both the action and the motion for summary judgment in the total amount of $121,861.18 comprised of $95,371.28 for fees, disbursements of $12,580.91 and HST of $13,908.99.

[10] The Plaintiffs bettered their May 26, 2020 offer to settle of $490,000.00 by more than $316,000.00. They therefore seek costs on a partial indemnity basis up to that date; and they seek substantial indemnity costs thereafter to the date of judgment.

[11] The Plaintiffs have submitted a detailed bill of costs together with supporting invoices for the claimed disbursements.

The Defendant’s Position

[12] The Defendant does not dispute the Plaintiffs’ entitlement to costs but merely suggests that the amount claimed is excessive. The Defendant argues that a total of $70,000.00 inclusive is entirely appropriate in all of the circumstances.

Discussion

[13] The Plaintiff was entirely successful on the motion.

[14] The Plaintiff bettered its offer to settle. By operation of Rule 49.10(1) (c), of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the Plaintiffs are presumptively entitled to the higher scale of substantial indemnity from the date of the offer to the date of judgment. I see no reason to depart from the direction in that rule.

[15] The Plaintiffs did not claim an excessive amount relative to the judgment obtained.

[16] The amount sought for fees is roughly 12% of the judgment awarded. This strikes me as entirely proportionate and fair.

[17] The Defendant did not provide a bill of costs and did not produce any evidence that the Defendant did not or could not anticipate that the quantum of costs now being sought would be so high.

[18] The Defendant did not take issue with any of the disbursements claimed by the Plaintiffs.

[19] There was nothing in the way the Plaintiffs prosecuted the claim that was unreasonable or unfair. They only retained an expert opinion in response to the Defendant doing so. They stated their intention to seek summary judgment early on and never wavered from that course of action. Counsel for the Plaintiffs impressed me as efficient, focused, polished and professional in the way he advanced the claim and advocated on behalf of his clients.

[20] On the other hand, the Defendant embarked on extensive cross-examinations of the Plaintiffs; yet not one shred of evidence from that exercise was relied on by the Defendant in opposing the motion. I can only conclude that the cross-examinations were unnecessary and ultimately a waste of time.

[21] The matter was of high importance to the Plaintiffs. The evidence that the expected proceeds of sale from the failed transaction represented their nest egg for retirement was uncontradicted and was, in any event, entirely believable.

[22] The matter was moderately complex: it required three separate attendances before a case conference judge. The court material inventory filed by the Plaintiff tells a story of both painstaking preparation on the part of counsel and vigorous opposition on the part of the Defendant.

[23] I do not find the amount sought for costs to be in any way excessive. Plaintiffs’ counsel skillfully and ably condensed the case sufficiently to allow it to be argued by way of a summary judgment motion; yet at the same time, he was thorough and fulsome in his presentation of the issues, the evidence and his canvassing of the law.

[24] This high standard of advocacy is an additional if minor factor which I have considered in exercising my discretion on costs.

[25] For the foregoing reasons, I find that the Plaintiffs are entitled to recover the entire amount they are seeking for costs. The Defendant shall pay the Plaintiffs costs of the action and the motion combined in the amount of $121,861.18. Those costs are fixed and payable forthwith.

McCarthy J.

Released: July 5, 2021