A. Introduction

[1] This is a costs decision in this action under the simplified procedure.

[2] On September 24, 2012, the Plaintiff Sukran Yilmaz was injured in an encounter with an unleashed dog. On April 11, 2013, the Yilmazes commenced an action against: (a) the owner of the dog; (b) TSCC #2094, the Condominium Corporation where the incident occurred; and (c) Shelter Canadian Properties Limited, the property manager of the condominium.

[3] Seven years later, on October 17, 2019, Ms. and Mr. Yilmaz commenced a new action against G4S Secure Solutions (Canada) Ltd. (“G4S Security”), which provided concierge and security services at the condominium.

[4] G4S Security brought a summary judgment motion to have the Plaintiffs’ 2019 action dismissed as statute-barred under the Limitations Act, 2002.[^1] I dismissed the Yilmazes’ 2019 action as statute-barred.

[5] G4S Security seeks costs of $24,362.52, all inclusive, on a substantial indemnity basis.

[6] The Yilmazes, whose own bill of costs for the motion would have been $7,577, all inclusive, submit that substantial indemnity costs should not be awarded and that G4S Security’s claim for costs is unreasonable and excessive for an action under the simplified procedure.

[7] The major reason that G4S Security submits that it is entitled to costs on a substantial indemnity basis is that it served a Rule 49 Offer to Settle on May 14, 2021. It offered a dismissal of the action against G4S Security in exchange for no order as to costs.

[8] It was reasonable for the Yilmazes to refuse this obviously tactical and coercive Offer to Settle in this action under the simplified procedure. The Yilmazes’ arguments based on discoverability were reasonably arguable, and they bore the normal risk of partial indemnity costs if those arguments failed.

[9] In the circumstances of the immediate case, the minor reasons advanced by G4S Security to justify a substantial indemnity award do not reveal steps in the litigation that are so egregious as to justify a punitive costs award.

[10] It is true that instead of starting a separate action against G4S Security, the Yilmazes could have brought a joinder motion in the existing action, but there was the pressure of the imminent tolling of the limitation period and from G4S Security’s perspective, the procedural result would have been just the same.

[11] Similarly, the scheduling arguments made by the Yilmazes, which arguments at case conferences, extended the time for resolving whether the claim against G4S Security was statute barred, do not justify a punitive award.

[12] It was not contested that G4S Security as the successful party is entitled to costs on a partial indemnity basis.

[13] Having reviewed its Bill of Costs and in accordance with the normal rules that guide the court’s discretion in awarding costs, I award G4S Security costs of $12,500, all inclusive, on a partial indemnity basis.

[14] Order accordingly.

Perell, J.

Released: December 20, 2021

COURT FILE NO.: CV-19-00629368-0000

DATE: 20211220

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SUKRAN YILMAZ and HASAN YILMAZ

Plaintiffs

and -

G4S SECURE SOLUTIONS (CANADA) LTD. and JAY KLEIN

Defendants

REASONS FOR DECISION - COSTS

PERELL J.

Released: December 20, 2021

[^1]: S.O. 2002, c. 24, Sch. B.

Yilmaz v. G4S Secure Solutions (Canada) Ltd. 2021 ONSC 8366

Case Summary

A. Introduction

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues