OSHAWA COURT FILE NO.: CV-19-537

DATE: 20211210

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

TRIBUTE (GRANDVIEW) LIMITED

Plaintiff

– and –

SHYAMALADEVI RAVINDRAN and RAVINDRAN KUGATHASAN

Defendants

Ranjan Das, for the Plaintiff

Defendants, Self-Represented

HEARD: December 6, 2021

REASONS FOR JUDGMENT

HEALEY J.

[1] The plaintiff moves for summary judgment on the claim, seeking judgment in the amount of $381,971.72 arising from the defendants’ alleged breach of an agreement of purchase and sale.

THE EVIDENCE

The Agreement of Purchase and Sale

[2] The plaintiff, Tribute (Grandview) Limited (“Tribute”) is the developer of a residential community in Oshawa, Ontario. The defendants, Shyamaladevi Ravindran and Ravindran Kugathasan, are spouses who entered into an agreement of purchase and sale with Tribute for the purchase of a lot and building within the development described as the “Park Ridge” community (the “Property”). The agreement of purchase and sale (the “APS”) was signed by the parties on September 17, 2016. The defendants admit that they are a party to the APS and signed it on September 17, 2016.

[3] The purchase price in the APS is $1,038,990, subject to adjustments, which included a deposit of $84,000 to be paid in instalments.

[4] Section 3 of Schedule “C” of the APS outlines the default and remedies provisions of the APS, including, but not limited to:

(a) The Purchaser shall be deemed to be in default under this Agreement in each and every one of the following events, namely: (i) Upon the non-payment of all or any portion of the Purchase Price, or any other sum due hereunder..

[5] The vendor’s rights and remedies are set out in the APS in the event of default by the purchaser. There are further provisions in Schedule “C” by which the purchaser indemnifies the vendor for its losses, costs, expenses or damages arising from any closing monies not being paid to the vendor or its solicitors for any reason whatsoever, and which stipulate that an administrative fee of 15% shall be added to any costs and expenses incurred by the vendor as a result of a breach or default on the part of the purchaser. Schedule “C” also provides:

This Offer, when accepted, shall constitute a binding contract of purchase and sale and time shall in all respects be of the essence hereof. It is agreed that there is no representation, warranty, collateral agreement or condition affecting this agreement or the real property or supported hereby other than as expressed herein in writing.

[6] The first tentative closing date was set as July 5, 2018.

[7] Schedules “L” and “M” of the APS provide the purchaser with a period of time after signing the APS to arrange for financing and to have the APS reviewed by a lawyer. If the purchaser is unable to arrange financing or the purchaser’s lawyer advises against the APS, the purchaser must provide written notice to Tribute by a specified date and time, otherwise the conditions are deemed to be satisfied and waived by the purchaser. In the defendants’ case, the APS was conditional until September 27, 2016 at 5:00 p.m. There is no evidence that the defendants provided written notice to Tribute before the end of the conditional period that they were unable to arrange financing or that their lawyer did not approve of the APS. Further, all of their subsequent conduct, as described below, is consistent with their intention to be bound by the terms of the APS.

Allegations of Representations

[8] In their statement of defence, the defendants state that at the time the APS was executed, they had been assured by their mortgage broker that they had preapproval for a mortgage on the Property. They allege that but for the representations made by the mortgage broker, they would not have entered into the APS. This allegation, if true, has nothing to do with Tribute and is no defence to the action. The allegation does not raise a triable issue.

[9] The defendants state in their pleading that, after signing the APS, real estate values began to drop significantly in the Oshawa and Greater Toronto areas because of new legislation introduced by the provincial government. Even if they had produced evidence to support such an allegation, which they have not, the defendants are not entitled to repudiate the APS based on a decline in real estate values in the area: Bang v. Sebastian, [2018] O.J. No. 5388, at paras. 34-37. This allegation does not raise a triable issue.

[10] The defendants also allege in their statement of defence that Tribute made representations to them about the market value of the Property, and about its future value, including that the Property’s expected value at the time of closing would “be around” the price of the APS. It is their evidence on this motion that these representations were made by Tribute’s sales agent, Jeff Morrison, before signing the APS.

[11] The alleged representations relied on by the defendants are denied by Tribute. It has filed affidavits sworn by Mary Liolios, who is the Vice President of Sales and Marketing with Tribute, and Rosy Chodirker, a longtime sales representative with Tribute, both of which contain evidence that such a statement would not have been made.

[12] Mary Liolios’ sworn evidence is that Tribute sales agents make no representations about potential increases or decreases in the value of the property, which would be impossible to do.

[13] Rosy Chodirker signed the APS as a witness to the defendants’ signatures. Other than the defendants’ allegations that they were told certain things by Jeff Morrison, there is no evidence that Mr. Morrison was ever involved in this transaction, or in reviewing or signing the APS, and Tribute is not aware of how the defendants obtained Mr. Morrison’s name.

[14] Ms. Chodirker does not have a specific recollection of meeting with the defendants. Her evidence is based on her normal practice, having been trained as a sales agent by Tribute and having worked in that capacity for several years.

[15] It is Ms. Chodirker’s evidence that if a prospective purchaser or real estate agent asked her about the market value of a property, she may have discussed the general market in the Oshawa area at the time, but would not have made statements about the market value of a specific property or lot in the Park Ridge community. She would also not have made any remarks regarding the future values of the properties, as the values are constantly fluctuating.

[16] Ms. Chodirker’s evidence is that she was trained by Tribute to always follow the same procedure when a prospective purchaser comes into the sales office to sign an agreement of purchase and sale, and that she believes she followed that procedure when the defendants came in and signed the APS. Her training included reviewing the APS and attached schedules with the purchaser. She provides the purchaser with an opportunity to read and review the APS, and to sign it and the attached schedules to signify an understanding of the document. She was also trained to draw the purchaser’s attention to the provisions in the APS that indicate that the purchaser should seek legal advice, and to provide the purchaser with an opportunity to seek legal advice. In particular, she explains that Schedule “L” gives the purchaser a period where the APS is conditional, where they can take it to be reviewed by a lawyer, and where the purchaser can cancel the deal.

[17] As admitted by the defendants, they executed and initialed the APS where required on September 17, 2016, the same date that it was signed by Ms. Chodirker.

The Defendants Request Extensions

[18] The defendants provided postdated cheques for the deposit payments in accordance with the APS. The postdated cheque for the deposit payment of December 27, 2016 in the amount of $14,000 was returned for insufficient funds. Tribute notified the defendants of the dishonoured cheque and demanded that they replace it. On or about February 9, 2017 the defendants provided Tribute with the replacement cheque. All of the other postdated cheques were successfully negotiated and the defendants paid the deposit in full.

[19] Between August 9, 2017 in April 10, 2018, the defendants selected and approved certain upgrades and modifications to the property via change orders totaling $101,112.28. The defendants paid a deposit of $15,166.84 toward the upgrades, and the balance of $85,945.22 for the upgrades was due on the closing date.

[20] On March 15, 2018, the parties executed an amendment to the APS, adding the balance of the cost of the upgrades to the purchase price, thereby increasing the purchase price to $1,140,102.28.

[21] On September 18, 2017, again on October 28, 2017, and again on June 7, 2018, Tribute sent an email to the defendants requesting that they provide a valid mortgage commitment letter for the finance of the transaction, listing the requirements for same and noting that the commitment letter was mandatory.

[22] On June 29, 2018, Tribute’s solicitor sent a letter to the defendants’ real estate solicitor, Ranjani Thirukeswaran, advising that Tribute would be agreeable to an extension of the closing date to July 31, 2018, following a request from the defendants’ solicitor for such extension. The extension was specified to be conditional on the defendants’ payment of an additional $20,000 toward the purchase price, and that the defendants return a signed extension agreement by July 4, 2018 at 4:00 p.m. The letter noted that Tribute was ready, willing and able to close on the scheduled closing date.

[23] On June 29, 2018, Mr. Thirukeswaran requested the Tribute waive the requirement of an additional deposit for an extension of the closing date. Tribute refused.

[24] On July 3, 2018, Mr. Thirukeswaran advised Tash Balog, a law clerk with Tribute’s solicitor’s office, that the defendants were unable to pay an additional deposit in order to secure the extension. Ms. Balog suggested that the defendants contact an individual at Toronto Dominion Bank to arrange for an appraisal of the property for the purpose of obtaining mortgage financing.

[25] On July 5, 2018, Mr. Thirukeswaran emailed Ms. Balog requesting an extension of the closing date to July 12, 2018. On the same day, Ms. Balog sent back an Extension Agreement, stating that Tribute would agree to the requested extension on condition that the defendants pay administrative and legal fees arising out of the extension and that the executed Extension Agreement be returned to Tribute by 4:00 p.m. the same day (the “July 12, 2018 Extension Agreement”). The July 12, 2018 Extension Agreement did not require the defendants to pay an additional deposit toward the purchase price.

[26] On July 5, 2018, Mr. Thirukeswaran provided Ms. Balog with the July 12, 2018 Extension Agreement, executed by himself as permitted.

[27] On July 12, 2018, Mr. Thirukeswaran sent an email to Ms. Balog advising that he did not have instructions to close the transaction on that day. He requested an extension of the closing to July 31, 2018 to allow the defendants to secure mortgage financing. Tribute advised that it would agree to the extension of the closing date to July 31, 2018 on the condition that, among other things, the defendants pay an additional deposit of $15,000 toward the purchase price, as well as administrative and legal fees associated with the extension (the “July 31, 2018 Extension Agreement”). The executed agreement was to be returned to Tribute by July 16, 2018 at 4:00 p.m..

[28] The July 31, 2018 Extension Agreement was returned to Tribute on July 12, 2018. It was signed by the defendants but with the paragraph regarding the additional deposit struck out. On July 23, 2018, Ms. Balog advised Mr. Thirukeswaran that the defendants had not complied with the terms of the July 31, 2018 Extension Agreement, as the additional deposit remained outstanding. She requested that the additional deposit be paid by the end of day, failing which Tribute would not agree to the extension.

[29] On July 23, 2018 Tribute’s solicitors Owen Wright LLP sent a letter to Mr. Thirukeswaran advising that Tribute was setting a final closing date of July 26, 2017 because the defendants had failed to comply with the terms of the July 31, 2018 Extension Agreement. The letter noted that Tribute remained ready, willing and able to close the transaction.

The Defendants Fail to Close the Purchase

[30] On July 26, 2017 Tribute tendered on the defendants via letter to their solicitor, which included a link allowing the defendants to access the tender documents online. This procedure was authorized by the APS.

[31] On August 1, 2018, Mr. Thirukeswaran requested that Tribute provide a vendor takeback mortgage. On the same day, he was advised that Tribute would not agree to same, and a forbearance letter was sent to Mr. Thirukeswaran. It advised, among other things, that it was “willing to forbear from enforcing its rights under the APS, in its sole and absolute discretion, until August 13, 2018.”

[32] On August 1, 2018, in response to the forbearance letter, Mr. Thirukeswaran advised Ms. Balog that the defendants were unable to finance the transaction, and requested a reduction of the purchase price. On the same day, Ms. Balog advised Mr. Thirukeswaran that Tribute would not reduce the purchase price but would consider providing a second mortgage on the property. She requested that he advise her of the amount of funds required by the defendants to close the transaction. There is no evidence that the defendants considered that offer.

[33] On August 23, 2018, Ilia Valitsky, General Counsel for Tribute, requested that the defendants provide the status of their financing. In his email of that date, Mr. Valitsky noted that time was of the essence, the defendants were in default of the APS, and the deadline in the forbearance letter had passed.

[34] On August 26, 2018, having received no response to his previous correspondence, Mr. Valitsky sent an email do the defendants demanding an acceptable proposal to cure their default and complete the transaction by September 7, 2018, failing which Tribute would commence legal proceedings against the defendants.

[35] The evidence of Ravindran Kugathasan is that he and his spouse made repeated attempts to salvage the sale, but ultimately the sale could not be completed because “the plaintiff preferred to commence this action.” The defendants plead that they sought the assistance of several mortgage brokers to secure financing to close the deal on July 5, 2018. They have not placed any evidence of those efforts before the court on this motion.

[36] On or about September 13, 2018, Tribute sent a termination letter to Mr. Thirukeswaran, advising that the APS was terminated effective the same day without prejudice to Tribute’s rights to claim for further damages, costs, expenses, interest and losses suffered as a result of the defendants’ default. The termination letter was also sent to the defendants via email on September 17, 2018.

[37] The defendants also allege in their statement of defence and on this motion that when they attempted to obtain financing, they were told that the property’s value was about $825,000. They rely on a draft appraisal report dated June 27, 2018, completed by MA Mortgage Architects Inc.

[38] The evidence filed by the defendants in response to this motion is extremely brief. There is an affidavit of Ravindran Kugathasan, five paragraphs in length, which references the alleged comment by Tribute’s sales agent, Jeff Morrison, and referencing the draft appraisal report. The draft report states that the Property’s appraised value as of June 26, 2018 was $825,000. However, the document relied on is stamped “Draft Copy – Not to be relied upon”, and no signed Form 53 Acknowledgement of Expert’s Duty has been provided.

[39] Tribute retained Agnes Lee, a certified Canadian Residential Appraiser accredited by the Accredited Appraiser Canadian Institute, to review the appraisal relied on by the defendants. Ms. Lee has held her accreditation since 2010. In addition to the fact that it is a draft, Ms. Lee points out that its author, Alexandra Vinichenko, is not a certified member of the Appraisal Institute of Canada (AIC), but rather a candidate member, and the report was not cosigned by an AIC member. Ms. Lee makes several comments related to the comparable properties used, explaining why the appraised value produced in the draft report is not reliable.

[40] I place no reliance on the document relied on by the defendants because it was draft, not accompanied by an affidavit of the expert or Form 53, not completed by a certified appraiser, and further, I accept the evidence of Ms. Lee that the comparable properties used in the draft report skewed the accuracy of the results.

[41] Tribute retained William Ly, who is a certified Canadian Residential Appraiser and a member of Acuity Professional Appraisals, to provide a value of the Property as of June 26, 2018. Mr. Ly completed a retrospective appraisal of the Property’s value as of June 26, 2018 and found that its value was $910,000. The appraisal, as with other appraisals completed by Mr. Ly for this litigation, is submitted through his affidavit along with an executed Form 53.

Mitigation

[42] In their statement of defence the defendants allege that if Tribute had reacted immediately after the transaction failed to close, the Property would have sold for more than it did.

[43] Mary Liolios’ evidence is that she was involved in Tribute’s attempt to resell the property after the defendants failed to close the purchase of the property on July 26, 2018. Her evidence is that to determine a sale price for a property in the development, Tribute’s team considers a number of factors including market conditions and the price of resale and comparable new developments in and around any particular development. Because Tribute does not sell prebuilt homes, it does not list new homes on the multiple listing service (“MLS”). Ms. Liolios’ evidence is that by selling directly through one of Tribute’s sales representatives or agents, it avoids adversely impacting the ability of other purchasers to close on homes that Tribute and other builders have sold in and around the Park Ridge Community that have not yet closed. If Tribute was to market the property for sale on MLS at a reduced sale price while it was actively closing other new homes in the community, it would have to do so without disclosing that the reduced price was an attempt to mitigate damages. As a result, appraisers retained by lenders for other purchasers would reduce their appraisals of neighbouring properties based on the property’s reduced sale price, without accounting for Tribute’s need to mitigate damages.

[44] William Ly of Acuity Professional Appraisals completed a retrospective appraisal of the property as of September 13, 2018, being the date the APS was terminated. He determined the fair market value of the property to be $940,000.

[45] In October 2018, the Property was listed internally at Tribute’s sales office at a price of $949,990. Ms. Liolios’ evidence is that the listing price reflects market trends and the limited number of comparable resales in the Park Bridge community. It did not sell, and was reduced to $899,990 on February 20, 2019, and further reduced to $869,990 on March 25, 2019.

[46] On May 20, 2019 the Property was sold for $849,000 via a real estate agent, with commission payable of $31,500. After credit for the deposit paid of $42,450, the balance due on the resale closing date was $808,460.85. Mr. Ly completed another retrospective appraisal of the Property as of the re-sale date and found its value to be $850,000.

[47] The onus is on the defendants to prove that the plaintiff’s mitigation efforts were unreasonable: 100 Main Street East Ltd. v. WB Sullivan Construction Ltd., (1978), 20 O.R. (2d) 401, 1978 CanLII 1630 (ON CA). They have not placed any evidence before the court with respect to mitigation. They do not have any evidence that challenges Mr. Ly’s evidence that the property’s value was $850,000 on the date that it was re-sold for $1,000 less than that appraised value. They did not provide any evidence to support the contention that it would have sold for more if listed any earlier.

The Law

[48] The leading case of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 sets out the approach to guide a motion for summary judgment.

[49] With respect to when summary judgment may be granted, Karakatsanis J. stated at para. 49:

There will be no genuine issue requiring trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process 1) allows the judge to make the necessary findings of fact, 2) allows the judge to apply the law to the facts, and 3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[50] At para. 50, the Court defined the overarching issue to be “whether summary judgment will provide a fair and just adjudication.” Karakatsanis J. went on to say that “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.”

[51] The court must take a hard look at the evidence on a motion for summary judgment to determine whether there is a genuine issue requiring a trial and may freely canvas the facts and law in doing so. No party is entitled to rely on the prospect of additional evidence that may be tendered at trial; all parties have an obligation to put their best foot forward on a summary judgment motion: Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, at para. 9; Chernet v. RBC General Insurance Co., 2017 ONCA 337, [2017] O.J. No. 2094, at para. 12; Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, [2014] O.J. No. 851, at para. 26, aff’d 2014 ONCA 878, [2014] O.J. No. 5815, leave to appeal to SCC refused, [2015] SCCA No. 97. As stated in Dawson v. Rexcraft Storage and Warehouse Inc., 1998 CanLII 4831 (ON CA), [1998] O.J. No. 3240 (Ont. C.A.), at para. 17, “[t]he motions judge is entitled to assume that the record contains all the evidence which the parties will present if there is a trial.”

[52] The requirement to put one’s best foot forward means that although the onus is on the moving party to establish the absence of a genuine issue requiring a trial, there is an evidentiary burden on the responding party, who may not rest on the allegations or denials in the party’s pleadings, but must present specific facts showing that there is a genuine issue for trial: Cuthbert v. TD Canada Trust, 2010 ONSC 830, [2010] O.J. No. 630, at para. 12; Sanzone v. Schechter, 2016 ONCA 566, [2016] O.J. No. 3760, at para. 30. These principles were recently affirmed once again in Broadgrain Commodities Inc. v. Continental Casualty Company (CNA Canada), 2018 ONCA 438, at para.7.

[53] The evidence adduced on a summary judgment motion need not be equivalent to that at trial. A documentary record may be enough, if it allows the motion judge to have confidence that she can fairly resolve the issues: Hryniak, at para. 57.

Analysis

[54] The first defence raised by the defendants concerns representations allegedly made by a Tribute salesperson. There is no evidence that Jeffrey Morrison was involved in this transaction; the defendants could have sought leave to examine him for the purpose of gathering such evidence.

[55] All that the court has is the evidence of Tribute’s witnesses, who deny that Mr. Morrison was involved, or that any statements were made about the Property’s current or prospective value at the time the APS was signed. The defendants were able to conduct cross-examinations if they chose to challenge this evidence but did not do so.

[56] Finally, even if such representations were made, the APS specifically excludes the purchasers from relying on any representations outside of the APS. Section 25 of Schedule “C”, which the defendants agreed to by signing the APS and initialing each of its pages, confirms their acknowledgment that “there is no representation, warranty, collateral agreement or condition affecting this agreement or the real property or supported hereby other than as expressed herein in writing”.

[57] The APS permitted the purchasers time to do their own due diligence with respect to seeking legal advice and exploring their financing options. They chose to waive the conditional period, with no evidence that they did either.

[58] Accordingly, there is no purpose to the document purporting to be an appraisal that has been submitted by the defendants. They chose to make a binding contract.

[59] Even though the defendants purport to rely upon the draft appraisal report, later in 2018 they sought extensions to the closing date. They also did not appear to have applied for mortgage financing until July 2018, over one and a half years after signing the APS and despite receiving three notices from Tribute seeking a mortgage commitment letter from the defendants.

[60] Although the defendants say that Tribute is responsible for the aborted sale and that they chose to commence this action rather than try to close the sale, it is obvious from the exchange of correspondence that Tribute made many reasonable attempts to close the transaction before terminating the APS. At the end, Tribute’s solicitor’s correspondence was ignored.

[61] I find that the defendants have breached the APS by failing to pay the amount due under the APS on closing.

[62] I accept the plaintiff’s evidence on mitigation, and that Tribute obtained the highest price available within a reasonable time after the termination date in September 2013. Their efforts to mitigate their losses were reasonable. They reduced the price incrementally. As stated by Edwards, J. in Gamoff v. Hu, 2018 ONSC 2172 at para. 35, “there is little better evidence of market value than the price at which the property actually sold following what appears to be appropriate and apparently motivated marketing”. The re-sale price is supported by a valid appraisal, arrived at by Mr. Ly using appropriate comparable properties. The defendants have offered no evidence to suggest that a higher price would have been obtained if the property had been listed on the MLS immediately after the APS was terminated. That same lack of evidence led the Court of Appeal to dismiss an appeal from a summary judgment motion granting judgment to the vendor in Tribute (Springwater) Limited v. Atif, 2021 ONCA 463, at para. 22.

[63] There is no genuine issue requiring a trial. The plaintiff has met its onus. The defendants have not met the evidentiary burden of showing that there is a genuine issue requiring a trial. The record permits this court to make the necessary findings of fact and apply the law. The summary process is the most cost-effective, proportionate and timely method to dispose of this action.

Damages

[64] Ms. Liolios’ affidavits thoroughly explain the damages suffered by Tribute, being the difference in the sale price plus carrying costs incurred by Tribute pending the sale of the property, less the deposits paid by the defendants.

[65] After credit for deposits made by the defendants totaling $99,166.84, there was a balance due on the final closing date of $1,049,455.04. In their statement of defence, the defendants request that the deposit be returned to them. Tribute has not argued that the deposit should be forfeited, but rather has applied the deposits as credits in their damage calculation.

[66] Tribute is entitled to charge an interest rate of the Prime Rate (as defined in the APS) plus 5% on the closing balance. In her affidavit sworn April 15, 2020 and July 30, 2021, Ms. Liolios has set out the interest calculation over two periods. The first is from July 26, 2018 to May 19, 2020 (the first day of the May 2020 trial sittings, in which this motion was previously scheduled to be heard). The second period is from May 20, 2020 to November 15, 2021 (the first day of the November 2021 trial sittings). In its calculation of interest during the latter period, Tribute has used the lowest Prime Rate between May 19, 2020 and the date on which Ms. Liolios’ second affidavit is sworn, which was 2.45%. The amount of interest accrued on the closing balance minus the resale closing balance in the first time period is $121,997.88, and during the second period is $26,758.05, for a total of $148,755.93.

[67] There is a termination fee due pursuant to the APS of $650.

[68] Pro rata property taxes from July 26, 2018 to resale are $2,890.08.

[69] Utilities (Hydro and gas) from July 26, 2018 to resale total $1,848.22.

[70] Commission paid on the resale of the property was $30,225.

[71] The administrative fee on costs and expenses at 15% pursuant to the APS total $5,513.53. While the APS does not provide that the fee is agreed to be a genuine pre-estimate of damages, the additional work that had to be carried out by Tribute and its agents in this case resulting from the defendants’ default thoroughly justifies the fee. The sum of $5,513.53 is a fair assessment of the likely cost and effort involved.

[72] With credit for the resale purchase price of the property of $849,990, the calculation of the plaintiff’s damages is $381,971.72.

COSTS

[73] The overarching principle when fixing costs is that the amount of costs awarded be reasonable in the circumstances: Davies v. Clarington (Municipality), 2009 ONCA 722, [2009] O.J. No. 4236, at para. 52.

[74] Tribute seeks costs on a substantial indemnity basis in the sum of $32,141.98. Counsel outlined several reasons why this scale of costs is appropriate, in his submission, starting with the allegation of misrepresentation against Tribute. Further, he submits that the defendants used this proceeding just as a delay tactic, wasting valuable resources of the justice system. In doing so, they failed to follow an order made in this case by Justice O’Connell that set out a timetable for litigation steps and failed to answer written examination questions.

[75] Enhanced costs should be awarded only on a clear finding of reprehensible conduct on the part of the party against whom the costs order is being made: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at p. 17; Smith v. Inco Ltd., 2013 ONCA 724, [2013] O.J. No. 5449, at para. 61; Davies, at paras. 28-31.

[76] The behavior of the defendants does not rise to the level of egregiousness that would warrant an award of costs on this higher scale. In terms of delay, although they sought an initial adjournment of this motion on October 14, 2020 in order to have an interpreter available, the plaintiff’s counsel was unavailable for a new hearing date until February 2021. When the matter was scheduled for the May 2021 trial sittings they obtained a lawyer only the previous week, and sought and were granted another adjournment. Costs of the day were awarded against them. I take into account that except for a short period thereafter, they were self-represented. While that does not excuse a failure to comply with a court order, the only absolutely mandatory order that they ignored was the filing of a factum by a deadline in September.

[77] Taking into account the factors set out in r. 57.01(1), and after examining the Bill of Costs and finding the time spent, rates charged and disbursements to be reasonable, I find that a fair and reasonable cost award in all of the circumstances of the case is $22,000.

[78] This court orders and adjudges:

(1) The Defendants shall pay to Tribute the amount of $381,971.72 for breach of contract.

(2) The defendants shall pay costs to Tribute of this action, including the within motion, on a partial indemnity basis in the amount of $22,000.

[79] The draft order provided by Tribute’s counsel shall issue accordingly.

HEALEY J.

Released: December 10, 2021