COURT FILE NO.: CV-21-0425-00
DATE: 2023-08-30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 1876029 Ontario Ltd. o/a B. Gibson Mechanical v. Smart Renovation Solutions Ltd. And Walaji Estate Inc.
HEARD: Written Submissions
BEFORE: Acting Regional Senior Justice T. Nieckarz
COUNSEL: Robin Lepere, for the Plaintiffs
Tarek Abuteen, for the Defendants
ENDORSEMENT ON COSTS
Overview:
[1] On July 11, 2022, I dismissed the Defendant, Smart Renovations’ motion for leave for Mr. Tarek Abuteen to represent the Defendant in this action. In doing so, I provided an opportunity for the Defendant to file a further motion with better evidence. The motion was dismissed, subject to a right to file a further motion with better evidence. That second motion was brought but dismissed by me for reasons set out more particularly at 1875069 Ontario Ltd. v. Smart Renovation Solutions et al, 2023 ONSC 1241.
[2] The Plaintiff was awarded costs of the first motion in the amount of $2,710. The Plaintiff claims costs of the second motion on a partial indemnity basis in the amount of $2,892.80 inclusive of fees, disbursements and HST.
[3] The Plaintiff’s argument is that it was the successful party on the motion and is entitled to its costs. The Plaintiff argues that there is no reason to deprive it of its costs, and that the quantum sought is fair and reasonable in the circumstances of this case.
[4] The Defendant’s submissions on costs appear to be more in the nature of an appeal of the decisions rendered. What I can glean from those submissions is that:
a. The Defendant argues that the Plaintiff acted unreasonably in the conduct of the motion, raising misleading and unsubstantiated objections to the Defendant’s position that unnecessarily complicated the matter.
b. The Defendant has appealed to the Divisional Court and if successful, should be the party entitled to costs, with the Plaintiff’s claim dismissed. The Defendant claims $15,031.83.
[5] Costs submissions were provided to me on July 20, 2023. This is my decision on costs.
Legal Principles:
[6] As I indicated in my original decision on costs, by virtue of s. 131(1) of the Courts of Justice Act, an award of costs is in the discretion of the judge. It is a wide discretion, to be exercised taking into consideration the factors outlined in Rule 57.01 of the Rules of Civil Procedure.
[7] Rule 57.01 provides, in part, as follows:
57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer;
(h.1) whether a party unreasonably objected to proceeding by telephone conference or video conference under rule 1.08; and
(i) any other matter relevant to the question of costs. R.R.O. 1990, Reg. 194, r. 57.01 (1); O. Reg. 627/98, s. 6; O. Reg. 42/05, s. 4 (1); O. Reg. 575/07, s. 1; O. Reg. 689/20, s. 37.
Costs Against Successful Party
(2) The fact that a party is successful in a proceeding or a step in a proceeding does not prevent the court from awarding costs against the party in a proper case. R.R.O. 1990, Reg. 194, r. 57.01 (2).
[8] The Ontario Court of Appeal has made it clear that in assessing costs, the overriding principle is one of reasonableness, and that the failure to follow that principle can produce a result that is contrary to the fundamental objective of access to justice (Boucher v. Public Accountants Council for the Province of Ontario, (2004), 2004 14579 (ON CA), 71 OR (3d) 291 (Ont CA) at para. 37).
Analysis:
Entitlement to Costs:
[9] The Plaintiff is the successful party on the motion. It is entitled to its costs. I agree that there are no facts or circumstances before me that suggests there is reason to order otherwise.
[10] In making this decision I have reviewed the evidentiary record on the motion. I see nothing in the materials filed by the Plaintiff or the correspondence between the parties that suggests the Plaintiff acted inappropriately such that it should be deprived of costs.
[11] The Defendant’s appeal is not a reason to deprive the Plaintiff of costs of the motion or to award costs to the Plaintiff. Regardless of the disposition of that appeal, the fact that there has been an appeal is not a relevant consideration for me in determining the costs of this motion. In addition, costs of the appeal itself are to be determined by the appeal court and not me.
[12] I find that the Plaintiff is entitled to partial indemnity costs. The question becomes, what is a reasonable award of costs on the circumstances of this case?
Quantum:
[13] I find that $ 2,000 inclusive is a reasonable amount based on:
a. The nature of the motion and the materials filed. The response for the Plaintiff to this motion was not as extensive as the first motion, the legal research had been performed and costs captured by the first motion, and argument was brief. While the time spent on the motion is not unreasonable, it is more than what was claimed for the first motion, and more was required in terms of evidence and submissions of the Plaintiff for the first motion. It only stands to reason that costs would be less for the second motion.
b. The hourly rates charged by the Plaintiff’s counsel, which are reasonable given the experience of counsel.
c. Some of the entries on the Bill of Costs do not strike me as appropriate for an unsuccessful party to pay on costs of this motion. For example, administrative charges over and above the lawyer rate that is not true clerk work and matters pertaining to the Notice of Motion for Leave to Appeal.
d. The matter did not require multiple attendances and the entire motion required an attendance not exceeding 1 hour.
e. Upon reviewing the record, I did not find any improper, unreasonable, or vexatious conduct on the part of the Plaintiff, either as alleged by the Defendant or otherwise.
f. The importance of the motion, and the outcome to the parties.
[14] The Defendant, Smart Renovation Solutions Ltd., shall pay to the Plaintiff, within 30 days, costs in the amount of $2,000.
“Original signed by” The Honourable Justice T.J. Nieckarz, Acting R.S.J.
DATE: August 30, 2023
COURT FILE NO.: CV-21-0425-00
DATE: 2023-08-30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 1876029 Ontario Ltd. o/a B. Gibson Mechanical v. Smart Renovation Solutions Ltd. And Walaji Estate Inc.
BEFORE: Acting Regional Senior Justice T. Nieckarz
COUNSEL: Robin Lepere, for the Plaintiffs
Tarek Abuteen, for the Defendants
ENDORSEMENT ON COSTS
Nieckarz A/R.S.J.
DATE: August 30, 2023