Court File and Parties
COURT FILE NO.: CV-20-29389 DATE: 20220630
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Sewa More, Gurlal Singh Gill, And Ravneet Kaur Boparai Plaintiffs
– and –
1362279 Ontario Ltd., operating as Seiko Homes Defendant
COUNSEL: Anthony Di Battista, for the Plaintiffs Samuel M. Atkin, for the Defendant
HEARD: Written Submissions
RULING ON COSTS
Carey J.
[1] On February 28, 2022, I granted the motion by the plaintiffs for summary judgment and specific performance relating to agreements of purchase and sale dated December 29, 2019.
[2] The successful parties seek costs on a substantial indemnity basis totalling $41,187, inclusive of HST and disbursements, including partial indemnity costs from the date of commencement of the matter until the date of the first r. 49 offer followed by substantial indemnity costs to the date of their submissions.
[3] The plaintiffs suggest that the cost request is modest given that there were three plaintiffs and that they have done their best to mitigate the costs by hiring one counsel and submitting their position in a unified fashion, as well as having all of the motions heard on the same date. They rely on my finding that the defendant acted in bad faith, as well as on their r. 49 offers in making their costs submissions.
[4] In terms of the damages arising from the failure to complete the transactions, the plaintiffs seek the real estate fees of the real estate lawyer, More Professional Corporation, for each of the three transactions including HST and disbursements at $8,136 for each transaction for a total of $24,408 for all three transactions. They also seek damages for the higher interest rates they will incur for the respective mortgages in order to complete their respective purchases. Mortgage rates have increased several times in 2022. I have not received submissions on the actual amount claimed under this head of damages.
[5] The defendant denies that the results obtained by the plaintiffs were better than the r. 49 offers made. The defendant says that substantial indemnity costs are not justified for the summary judgment motion. The defendant has submitted their own bill of costs, as the Rules provide, for the two motions dated October 20, 2021. Their costs for their motion and defence of the plaintiffs’ motion, at the full indemnity rate, are $17,355.37, inclusive of HST and disbursements; $14,135.20 on a substantial indemnity basis; and $9,304.96 on a partial indemnity basis.
[6] The mitigation done by the plaintiffs has significantly reduced their damages to date. I am not in a position to assess the reasonableness of the real estate lawyers’ fees as I was not provided a breakdown of the real estate fees for each transaction, but I agree that reasonable legal fees are appropriate as thrown away due to the defendant’s conduct.
[7] I do not accept that the representation of all three plaintiffs in a unified claim on a summary judgment motion should result in the bill of costs for substantial indemnity fees as high as those requested by the plaintiffs. I am not satisfied that any substantial increase in preparation by counsel was required due to there being three transactions. There was the use of one counsel for all three plaintiffs and the reliance on one affidavit.
[8] I am prepared to accept as reasonable, that the full indemnity costs incurred by the defendants and as set out in their bill of costs of October 20, 2021, are an appropriate amount to be applied to the value of the work done on behalf of the three plaintiffs, on a substantial costs basis.
[9] Accordingly, costs are ordered on a substantial indemnity basis to the plaintiffs in the amount of $17,500, inclusive of HST and disbursements, for the work done for the summary judgment motion and submissions on damages and further relief. If the parties require my assistance regarding any other outstanding issues, submissions in writing can be made within 30 days, or the Trial Co-Ordinator can be contacted for a date to speak to these issues.
“original signed and released by Carey J.”
Thomas J. Carey Justice
Released: June 30, 2022
COURT FILE NO.: CV-20-29389 DATE: 20220630
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Sewa More and Gurlal Singh Gill and Ravneet Kaur Boparai
and
1362279 Ontario Ltd. operating as Seiko Homes
RULING ON COSTS
Carey J.
Released: June 30, 2022