COURT FILE NO.: CV-22-89047 (Ottawa)

DATE: July 20, 2022

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: M & F FALSETTO AND SONS LIMITED, Plaintiff

AND:

THE CITY OF OTTAWA AND CARLETON CONDOMINIUM CORPORATION 339, Defendants

BEFORE: Mr. Justice Gary W. Tranmer

COUNSEL: S. Schwisberg and D. Rizk, for the plaintiff, M & F Falsetto and Sons Limited

A. Severson, for the defendant, The City of Ottawa

R. Escayola and D. Plotkin, for Carleton Condominium Corporation 339

HEARD: in writing

COSTS ENDORSEMENT

[1] The plaintiff sought an interlocutory injunction. For the reasons found at 2022 ONSC 3296, its motion was dismissed.

[2] The defendant, Carleton Condominium Corporation 339 (“CCC 339”), was entirely successful in defending the motion. It seeks costs.

[3] The plaintiff and the City of Ottawa have settled the issue of costs as between them.

[4] CCC 339 made a timely Rule 49 Offer to Settle that engages Rule 49.10, pursuant to which it is entitled to partial indemnity costs from the date of the Offer unless the court orders otherwise. CCC 339 seeks a cost award on an enhanced basis because of its success, changing positions advanced by the plaintiff and beating its Offer.

[5] Pursuant to section 131 of the Courts of Justice Act, costs are a matter of court discretion.

[6] Rule 57 sets out the governing principles and factors to be considered. It permits costs to be awarded on a substantial indemnity basis and on a full indemnity basis in the court’s discretion.

[7] I have considered the principle of indemnity, the experience of the lawyers acting for the defendant as well as the rates charged and the hours spent by the lawyers. The rates charged by the lawyers for CCC 339 are in accordance with the Rule. The hours claimed are 103 compared to 77 hours the plaintiff. The total hours seem excessive to me in the circumstances of this motion.

[8] The partial indemnity costs post Offer claimed by the defendant are about 50% higher, $26,066, than those incurred by the plaintiff, $15,636. This bears on the question of the amount of costs that the unsuccessful party could reasonably expect to pay for the motion.

[9] The matter was not overly complex and the issue was important to both sides, the property and privacy interests of the plaintiff, and the need to repair its property on the part of the defendant.

[10] The argument of delay raised by the plaintiff must be considered together with it adding the s. 440 argument late in the proceedings. As I noted in my reasons, it was in contact with the City and also the information it sought was contained in the materials filed by CCC 339 on the motion. It is unclear on the materials as to why counsel for CCC 339 did not simply respond to the plaintiff’s counsel request and provide the information requested.

[11] The written materials filed by counsel on the motion were thorough and helpful to the court, and permitted a focused relatively brief hearing of the motion.

[12] The overriding principles in a costs award include indemnity, fairness and reasonableness and the reasonable expectations as to costs of the parties. The court should seek to balance these principles with the fundamental objective of access to justice.

[13] Balancing these principles and factors, I find that the costs award in this case should be guided by Rule 49.10, namely partial indemnity costs from the date of the Offer to Settle.

[14] Costs are awarded to the defendant CCC 339 fixed in the amount of $22,000.

[15] The Reply submissions as to costs of CCC 339 played no role in my decision.

Tranmer J.

Date: July 20, 2022