Court File and Parties

Newmarket Court File No.: CV-21-2699-00 Date: 20240305 Ontario Superior Court of Justice

Between: 2371143 ONTARIO INC., Plaintiff – and – CANAAN ART CENTRE INC., CHUN MEI WU and LI XIU HUANG, Defendants

Counsel: Sara Romeih, for the Plaintiff Defendants, Self-Represented

Heard: In Writing

Decision on Costs

HEALEY, J.:

[1] The plaintiff successfully moved for judgment under r. 20.04 for judgment on its claim brought in relation to a commercial lease. It sought an award of damages in the amount of $149,240.28 and obtained judgment in the amount of $134,652.53. As the successful party, the plaintiff is entitled to costs.

[2] I have reviewed the written submissions filed by the plaintiff’s counsel. None were received from the defendants.

[3] The plaintiff seeks to recover its costs on a substantial indemnity scale. I find that this is one of those cases in which the pre-litigation conduct of the defendants should attract substantial indemnity costs: Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, at para. 43.

[4] Canaan first took a highly unreasonable position in paying no rent for the commercial premises from April 2020 until their departure from the premises in October 2020, even though the evidence shows that they received approximately $57,000 in April in the form of loans for that express purpose. Despite not receiving payment for months, the plaintiff made only gentle reproaches for payment, increasing in force only as September approached. Then, as plaintiff was attempting to negotiate a resolution after months of indulgence, Canaan’s representatives stopped communicating. The last communication was from the plaintiff’s representative, requesting a time when they could meet to discuss things in person.

[5] When the plaintiff exercised its right of re-entry under the lease, Canaan’s representatives, including Wu, deliberately broke the lock for the purpose of removing belongings. They flagrantly ignored the terms of the lease that addressed the rights and obligations of the parties on default. While engaged in this trespass, they took items such as doors and ceiling tiles, causing damage to the premises that cost the plaintiff further money to repair.

[6] No part of the claim was conceded by defendants, despite the express language of the lease.

[7] I find that the plaintiff was driven to commence this litigation entirely due to the unreasonable actions of the defendants, which are worthy of sanction through a cost award on the higher scale.

[8] Having regard to the factors in r. 57.01(1) and having reviewed the Bill of Costs filed by the plaintiff, I find that the costs being sought are fair and reasonable. Part of this calculus is that the plaintiff had to go to the trouble and expense of arranging three case conferences with the court because of the defendants’ failure to comply with the Rules of Civil Procedure, not responding to a suggested litigation timetable, and not adhering to the timetable order. The defendants were self-represented at the time of the argument of the motion, but that was a recent development. They were represented by counsel until January 4, 2024. As such, I agree with the submission of plaintiff’s counsel that they would have an appreciation for the cost of legal services and would expect a sum of this amount for a motion that was scheduled as a long motion.

[9] Considering the amount recovered on the motion, substantial indemnity costs of $47,354 inclusive of fees, disbursements and taxes are not out of proportion. I find that they are reasonable and within what would have been the defendants’ expectation when they decided to oppose the motion.

[10] For all these reasons, this court orders that the defendants shall pay costs to the plaintiff fixed in the amount of $47,354.00.

The Honourable Madam Justice S.E. Healey Released: March 5, 2024