Court File and Parties

COURT FILE NO.: CV-21-674239-0000 DATE: 20220825

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: WENDY WARNER, Plaintiff – and – MAAROUF AHMADI, Defendant

BEFORE: E.M. Morgan, J.

COUNSEL: Shaneka Shaw Taylor, for the Plaintiff Eliezer Karp, for the Defendant

HEARD: Costs submissions in writing

COSTS ENDORSEMENT

[1] On May 10, 2022, I released my reasons for decision granting summary judgment to the Plaintiff and ordering specific performance of the agreement of purchase and sale in issue. As the successful party, the Plaintiff is entitled to her costs of the action.

[2] Counsel for the Plaintiff has provided me with written submissions and a bill of costs in which she seeks costs on a substantial indemnity scale in the amount of $26,065.77 or, alternatively, on a partial indemnity scale in the amount of $18,416.24. Both amounts are inclusive of all fees, disbursements, and HST. It is the Plaintiff’s position that these costs are reasonable in the circumstances and that they are proportionate to the time and effort invested in the case and to the amount of fees that the Defendant could expect to pay.

[3] Counsel for the Defendant has also provided me with written cost submissions. He submits that the Defendant would have sought all-inclusive costs of $15,000. He is of the view that there are no grounds here for awarding costs on a substantial indemnity scale, and that the more usual partial indemnity scale should apply here.

[4] The Supreme Court of Canada has stated that costs should be awarded on a substantial indemnity scale “only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties”: Young v. Young, [1993] 4 SCR 3, at para [134]. Similarly, the Court of Appeal has indicated that substantial indemnity costs “should not be awarded unless there is some form of reprehensible conduct, either in the circumstances giving rise to the cause of action, or in the proceedings, which makes such costs desirable as a form of chastisement”: Mortimer v. Cameron, 17 OR (3d) 1, at 23.

[5] There was no reprehensible or outrageous conduct on the part of the Defendant here. He was wrong in breaching the contract, but he was entitled to argue his case and did so properly. The price of doing so is the judgment against him; there are no grounds for adding the additional burden of costs on a substantial indemnity scale. While he must pay the Plaintiff’s costs, those costs are to be on the ordinary partial indemnity scale.

[6] The Plaintiff’s partial indemnity costs request is not much higher than what the Defendant says is appropriate. I am not inclined to second guess Plaintiff’s counsel on how many billable hours should have been devoted to this file. Plaintiff’s counsel invested what was needed to win the case.

[7] The Defendant shall pay the Plaintiff costs in the amount of $18,416.24, all inclusive.

Date: August 25, 2022 Morgan J.