COURT FILE NO.: CV-21-77102-0000
DATE: 2023-11-21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sawgrass Holdings Inc.
Applicant
– and –
Harvestone Inc. and Albert Masini
Respondents
M. Stanton, K. McGurk, for the Applicant
J. I. Marini, for the Respondents
HEARD: April 14, 2023, costs submissions received by October 19, 2023
THE HONOURABLE JUSTICE R. B. REID
DECISION on costs
[1] The parties are engaged in disputes arising from a lease by Sawgrass Holdings Inc. (“Sawgrass”) of commercial property in Burlington, Ontario to Albert Masini (“Masini”) who became a tenant of the premises beginning January 1, 2010. Masini was a director and shareholder of a corporation known as Harvestone Inc. (“Harvestone”) which operated a business of granite and marble fabrication and sales at the premises.
[2] Masini and Harvestone made an application dated January 20, 2017, seeking a determination of their rights arising from Minutes of Settlement (which were signed as a resolution of previous disputes) and claiming $500,000 damages against Sawgrass.
[3] Sawgrass made an application dated September 22, 2021, seeking an order for vacant possession of the premises, as well as advancing a damage claim for $201,653 arising from the non-payment of rent and damages relating to the costs of restoring and repairing the premises.
[4] By order of Goodman J., dated January 5, 2022, the two applications were consolidated.
[5] After a hearing of the applications, I issued a declaration that Masini and Harvestone were in breach of the lease with Sawgrass, that the lease was terminated, and that a writ of possession as to the premises could be executed in favour of Sawgrass. I deferred adjudication on the remaining relief claimed in the applications, all of which was monetary, with both applications converted to proceed as a single action.
[6] The parties were invited to resolve the issue of costs consensually, failing which they were to provide Bills of Costs and written submissions according to a timetable. No consent was reached. The timetable was extended. Submissions have now been received.
Positions of the Parties:
[7] Both parties seek an order dealing with costs of the two applications to date.
[8] Sawgrass claims costs of $55,361.66 for its application and its response to the Masini application on a partial indemnity basis, inclusive of HST and disbursements. Its claim is based on success at the hearing where the declaratory relief was granted. As an alterative, Sawgrass seeks $40,000 arising from its success in receiving the declaratory relief, deferring costs submissions on the financial claims pending resolution of those matters.
[9] Sawgrass’s Bill of Costs is silent as to any costs arising between January 2017 and April 2021. The all-inclusive substantial indemnity total is $83,703.
[10] Masini and Harvestone submit that there should be a costs order in their favour, given that all their claims remain intact, and will be determined in the action. Sawgrass was only partially successful, and its success was based on only one of the several grounds alleged by it. Alternatively, Masini and Harvestone submit that there should be no order as to costs based on divided success. In any event, they submit that any costs awarded to Sawgrass should be substantially reduced since it only achieved partial success.
[11] Masini and Harvestone’s all-inclusive partial indemnity claim is $63,068, and their substantial indemnity total is $94,238.
Analysis and Conclusion:
[12] The court’s discretion to award costs is found in s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and the factors to be applied in exercising that discretion are enumerated in rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Since success is a presumptive factor in the exercise of the court’s discretion to award costs, no order is appropriate when success has not yet been determined, therefore no costs order should be made in relation to the damage claims which have yet to be adjudicated.
[13] The parties have advanced monetary claims in significant amounts. They have demonstrated through the large number of documents filed and the broad scope of the disagreements reflected in the affidavit materials that resolution of the damage claims will require a review of many disputed facts. Some of those areas of disagreement are referenced in my decision of July 17, 2023. It is not possible to weigh the importance to the parties of the declaratory relief relative to the damage claims. Both have obvious significance.
[14] Sawgrass did have success in securing the declaratory relief sought. If there was some clarity as between the time spent by Sawgrass on the declaratory relief claim and the damage claim, it might be possible to make an award based on its partial success. However, the submission that $40,000 is appropriate to ascribe to the declaratory relief claim (which is about 73% of the partial indemnity total) is not well-supported based on the Bill of Costs filed. It appears to be more akin to a guesstimate. I am not satisfied that I can rely on that figure as the basis for a costs award.
[15] Any costs award must represent an appropriate exercise of judicial discretion and must be fair to both parties. In this case, it is fair to consider that Sawgrass achieved success in at least part of its claim, but it is not fair to Masini and Harvestone to set an amount for costs to be paid by them that cannot be related directly to time spent on the declaratory relief claim.
[16] That being the case, I consider it to be an appropriate exercise of my discretion to reserve the issue of costs on the claim for declaratory relief to the judge hearing the claims for damages.
Reid J.
Released: November 21, 2023
COURT FILE NO.: CV-21-77102-0000
DATE: 2023-11-21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sawgrass Holdings Inc.
Applicant
– and –
Harvestone Inc. and Albert Masini
Respondents
DECISION on costs
Reid J.
Released: November 21, 2023