Court File and Parties

COURT FILE NO.: CV-21-00659921-0000 DATE: 20211103 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Anderson Learning Inc., operating as Bond International College, Plaintiff AND: Birchmount Howden Property Holdings Inc., Defendant

BEFORE: Stewart J.

COUNSEL: Robert B. Macdonald, for the Plaintiff Sharon IIvasky, for the Defendant

HEARD: In Writing

ENDORSEMENT

[1] In my decision of August 30, 2021 I invited the parties to provide submissions in writing on costs if that subject could not be agreed upon by them. I now have received and considered submissions from both parties.

[2] Bond seeks its costs on a substantial indemnity basis in the amount of $34,339.46. In support of its request for an order for costs on that scale and in that amount, Bond argues that:

a) Bond was entirely successful on its motion, and in opposing Birchmount's cross-motion [r. 57.01(1)(0.a)];

b) The hourly rates charged by Bond's counsel are consistent with market rates, and are reasonable in the circumstances of this case [r. 57.01(1)(0.a)];

c) Bond's counsel delegated work to associate lawyers and law clerks with lower hourly rates, where appropriate. The majority of the time spent on this proceeding was incurred by Marko Petrovic, an associate lawyer called in 2019 [r.57.01(1)(0.a)];

d) Birchmount could reasonably have expected to be subject to an elevated cost award in response to the various positions it took both before and during this proceeding. Given that Birchmount was represented by senior and respected counsel throughout, it is reasonable to conclude that Birchmount was advised of the cost exposure it risked based on the various positions it took [r.57.01(1)(0.b)];

e) The proceeding was of moderate complexity. The factors that made it complex were (i) the urgency of the issues; (ii) Birchmount's challenge to the authenticity of Bond's February 28, 2020 renewal notice; and (iii) the interpretation of the various pieces of correspondence between the parties (which was only necessitated because of the positions that Birchmount took) [r. 57.01(1)(c)];

f) For Bond, there was much more at stake in this proceeding than money. Bond's existence as an operating school hung in the balance, having been threatened by the various arbitrary and high-handed position that Birchmount took [r.57.01(1)(d)] ;

g) Mr. Hinn's threat to summarily terminate Bond's lease necessitated this proceeding, and forced Bond to move urgently. It was only when Bond gave notice that it would seek injunctive relief that Birchmount relented, and undertook not to summarily terminate the lease. However, the importance of the issues and the circumstances of this case made Bond's motion analogous to a motion for injunctive relief, which courts have found generally cause significant fees to be incurred in prosecuting [r. 57.01(1)(e)]

h) As previously set out, Birchmount ought not to have challenged the authenticity of Bond's February 28, 2020 renewal notice. It's challenge to the authenticity of the renewal notice (which it maintained until the 11th hour) was unreasonable [r. 57.01(1)(i) and (g)]; and

i) Mr. Hinn threatened Bond with termination, threatened Bond's principals with personal liability, and, without any scintilla of supporting evidence, accused Bond of fraud [r. 57.01(1)(i)].

[3] Birchmount requests an order that each party should bear its own costs of the motion. Alternatively, it argues that substantial indemnity costs are not appropriate in this case, and that any award of costs on a partial indemnity basis should reflect a reduction of at least 50%.

[4] It is clear that Bond was successful on the motion and obtained the best possible result available to it. However, and although Birchmount took an aggressive stance on the motion and demonstrated a strong but ultimately misguided conviction as to the rightness of its position, I do not consider that it engaged in conduct or action that was so egregious as to invite an award of costs on a higher scale than partial indemnity.

[5] Although Birchmount did make an offer to settle, it cannot be said that its terms were better than those achieved by Bond on the motion. Indeed, although Birchmount was prepared to maintain rent at the rate being paid by Bond, it may well be that the market rent for the premises given the effects of the pandemic will ultimately be lower than that being paid. In any event, I am of the view that the settlement offer made by Birchmount was not attractive and does not serve to affect to any significant degree the determination of an appropriate disposition as to costs.

[6] Bond did not make any offer to settle upon which it relies in its submissions.

[7] In all of the circumstances I consider that the Plaintiff, having been successful in the result, is entitled to an order for costs on a partial indemnity basis. In my view, and in light of the significance to the parties of the matters in dispute, the amounts in issue and the time required to be spent in order to address them adequately, the sum of $20,000.00, inclusive of all disbursements and applicable taxes, is a fair amount for Bond to recover and I so order. That amount shall be paid to Bond by Birchmount within 60 days of the date of this endorsement.

Date: November 3, 2021