Court File and Parties

COURT FILE NO.: CV-18-00610728

DATE: 20210803

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Country Wide Homes Upper Thornhill Estates Inc., Plaintiff

– AND –

Ying Cui and Xu Zhou, Defendants

BEFORE: E.M. Morgan J.

COUNSEL: Emilio Bisceglia and Sonja Turajlich, for the Plaintiff Sara Erskine and Fraser Dickson, for the Defendants

HEARD: Cost submissions in writing

COSTS ENDORSEMENT

[1] The Plaintiff is a subdivision developer and vendor of a house to the Defendants, who in turn defaulted on the Agreement of Purchase and Sale. On July 2, 2021, I issued my judgment in this matter in which I granted summary judgment to the Plaintiff on its claim and dismissed the Defendant’s counterclaim. The Plaintiff is entitled to its costs.

[2] The Plaintiff seeks an all-inclusive total of $49,738.34 on a partial indemnity scale. Its Bill of Costs indicates that the total would come to $69,355.14 on a substantial indemnity scale, but Plaintiff’s counsel have not specifically asked for an elevated scale of costs. There is a good argument that they might have deserved it.

[3] As I pointed out in my reasons for judgment, the Defendants’ defense and counterclaim was virtually identical to one that the Court of Appeal has recently ruled on and dismissed. The Defendants’ entire position in the motion before me can be said to have fallen under Rule 57.01(1)(e) of the Rules of Civil Procedure – i.e. a set of steps that unnecessarily lengthened the proceeding.

[4] The Court of Appeal decision, Country Wide Homes Upper Thornhill Estates Inc. v. Ge, 2020 ONCA 400, involved another purchaser in the identical subdivision as the one at issue here facing off against the same developer/vendor over the very same environmental and contractual issues as those raised by the Defendants. I commented, at para. 9 of my reasons, that the Country Wide v. Ge decision is “…so on point that to use the commonplace expression that it is on ‘all fours’ with the case at bar would be an understatement.” In the same paragraph I then went on to observe that, “The Defendants’ arguments before the Court of Appeal were as close as one can get to being an exact replica of the arguments made in the present motion…those arguments by the Defendants and their counsel were dismissed out of hand by the Court of Appeal.” I therefore concluded, at para. 11, that, “There is nothing to the Defendants’ case that was not already considered by the Court of Appeal in Country Wide Homes v. Ge.”

[5] Given this extreme similarity to a case that the Court of Appeal had ruled on shortly before the motion before me, one would think that the Defendants would have re-thought their approach to this case and somehow taken the Court of Appeal’s ruling into account. They did not. In fact, they did not mention the Court of Appeal ruling at all in any of their materials.

[6] As I mentioned in my reasons for judgment, the Plaintiff also did not mention the Ge case in its factum, although Plaintiff’s counsel did refer me to it during the course of his argument at the hearing of the motion. I can only assume that it was a late find by Plaintiff’s counsel and that it sounded a bit like an afterthought because it was indeed a last-minute addition to the argument.

[7] It would, of course, have been preferable for Plaintiff’s counsel to have relied on the Ge decision earlier in the process, as that might have discouraged Defendants’ counsel from its all-out pursuit of a defense and counterclaim already roundly rejected by an appellate court. But I do not fault Plaintiff’s counsel for this as much as I fault Defendants’ counsel for vigorously pursuing what was already determined to be a futile legal position.

[8] It is, of course, possible that both sets of counsel only noticed the Court of Appeal ruling late in the process of preparing for this motion. In fact, I am willing to give them the benefit of the doubt and assume that was the case. I will therefore stick to the partial indemnity scale of costs sought by Plaintiff’s counsel.

[9] Costs are always discretionary under section 131 of the Courts of Justice Act, RSO 1990, c. C.43. Defendants’ counsel complains that Plaintiff’s counsel spent unnecessary hours at various points in their preparation of the motion. I am not prepared to second guess their preparation; Plaintiff’s counsel invested what time they thought it required to win the case, and they succeeded in doing so. I only wish they had found the Ge decision sooner, but under the circumstances that is not a point that inures to the benefit of the Defendants.

[10] Rounding the figure off slightly, the Defendants shall pay the Plaintiff $49,500 in costs, inclusive of all fees, disbursements, and HST.

Date: August 3, 2021 Morgan J.