Superior Court of Justice – Ontario

Court File No.: CV-23-149
Date: 2025-03-25
Address: 611 Ninth Avenue East, Owen Sound ON N4K 6Z4

Re: Cook et al v. Singh et al
Before: Sproat
Counsel:

• John A. Tamming, for the Plaintiffs/Moving Parties
• Ben Thind, for the Defendants/Responding Parties
  Heard: In writing

Endorsement – Damages, Interest and Costs

Damages

[1] In my endorsement of January 22, 2025, I assessed the damages, based upon the original sale price and the value of the subject property, to be $99,000.

[2] As Mr. Tamming pointed out, I did not address his argument that his client incurred $2,161.40 in legal expenses, which were thrown away as a result of the breach of contract by the defendants in failing to complete the original real estate transaction and incurred $1,753.20 in carrying costs for the property to the new sale date.

[3] In his affidavit in support of the motion for summary judgment, Mr. Cook set out that these were his legal expenses and his carrying costs to August 18, 2022. In his submissions on December 19, 2024, Mr. Tamming confirmed that he was claiming these amounts, unless to award these amounts would result in a judgment in excess of $200,000.

[4] Given that these were items that, through inadvertence, I had not earlier addressed, and given that the judgment had not been issued and entered, I asked the parties for written submissions.

[5] Mr. Tamming did not have any further submissions. Mr. Thind made the following submissions:

The Defendants submit that the Plaintiffs’ attempt to seek additional damages is unreasonable and inconsistent with the underlying policy objectives of the Simplified Procedure. The Plaintiffs made a calculated decision to abandon any claims exceeding $200,000, and those abandoned claims cannot now be revived simply because they failed to obtain the damages they initially sought.

Requiring additional submissions on this matter after the decision has already been rendered contradicts the very purpose of the Simplified Procedure, which is designed to promote efficiency and cost-effectiveness. Allowing the Plaintiffs to reintroduce previously abandoned claims would unfairly prejudice the Defendants by prolonging litigation beyond what was originally presented through the Simplified Procedure.

The Defendants submit that their decision not to object to the additional claims of damages was predicated on the Plaintiffs’ own decision to abandon their claims exceeding $200,000. To now argue that these damages should be permitted simply because the Defendants did not previously object is both illogical and procedurally unfair. The additional damages were not before the Court, and the Plaintiffs’ failure to obtain their expected damages does not justify an attempt to circumvent their own election to proceed under the Simplified Procedure.

[6] I have some difficulty even understanding these submissions, and I certainly do not agree with them. As set out above, the plaintiffs put forward evidence of these damages. The defendants did not take any issue with the evidence with respect to these damages. I simply failed to address this minor component of the claim in my endorsement of January 22, 2025. Given that the judgment had not been issued and entered, there is certainly no reason why the plaintiffs should be denied damages on account of legal expenses and carrying costs due to my inadvertence.

[7] Mr. Thind then goes on to submit that, if I am going to award carrying costs calculated to August 18, 2022, the result is that the plaintiffs have “re-opened the door” on damages and, therefore, I should entertain further argument as to the appropriate date on which damages are to be assessed.

[8] The date upon which damages are to be assessed was fully argued and was analyzed in paragraphs 2-6 of my January 22, 2025 endorsement, and I made a finding of fact as to the date. There is, therefore, no reason to reconsider that issue.

Interest

[9] Mr. Tamming calculated prejudgment interest to January 22, 2025, in the amount of $10,886.87. Mr. Thind did not take issue with this calculation, and I agree with it.

Costs

[10] Mr. Tamming claims fees of $46,732, H.S.T. of $6,075.16 and disbursements of $13,769.89. He calculates costs based upon partial indemnity costs of $33,250, calculated up to November 21, 2024, the date of the plaintiffs’ Rule 49 Offer to Settle, and substantial indemnity costs of $11,625 thereafter.

[11] The disbursements amount is almost entirely for expert appraisal reports. The second appraisal report by each expert was necessitated by Mr. Thind taking issue with what I ultimately determined to be the correct date at which to determine damages.

[12] As to the fees, Mr. Thind argued that the time spent was unreasonable and provided his dockets from May 29, 2024. The action was commenced July 20, 2023, so I do not know his total time. I would also expect the moving party on a summary judgment motion to have to spend more time than the responding party.

[13] I find that the hours spent were reasonable. In this regard, I agree that the defendants’ conduct of the litigation, as set out in the plaintiffs’ written submissions at paragraph 16, served to increase the time required. The hourly rate is also reasonable for senior counsel. I also accept that senior counsel would be able to deal with the case in less time than less experienced counsel.

[14] The plaintiffs structured their November 21, 2024 Rule 49 offer as follows:

• Damages $100,000
• Fees inclusive of H.S.T. $28,250
• Disbursements $7,925
• $136,175

[15] Mr. Thind submitted that “the plaintiffs excluded PJI from their offer, so they cannot now claim PJI to argue they ‘beat their offer.’” I do not agree. What is important is not how the elements of the offer were characterized, but the amount the defendants could have settled for, compared to what they have to pay pursuant to the judgment rendered.

[16] Mr. Tamming now claims $33,250 in partial indemnity costs, and, as herein before set out, I have determined that the partial indemnity costs should be to November 21, 2024, being the date of the Rule 49 offer.

[17] The defendants, therefore, could have settled on November 21, 2024, for a total of $136,175. In fact, under the judgment, the defendants will have to pay $102,914 damages, plus $10,886 PJI, plus $33,250 on account of partial indemnity costs to November 21, 2024, resulting in a total payment of $147,050. The plaintiffs clearly bettered their offer and are entitled to substantial indemnity costs from November 21, 2024.

[18] The costs from November 21, 2024 should be calculated on a substantial, and not a full, indemnity basis. I, therefore, discount the 18 hours of time by 10%, or $75 per hour, for this reason. That reduces the total costs claimed by $1,525.50 ($75 x 18 = $1,350 + $175.50 H.S.T. = $1,525.50).

Conclusion

[19] Mr. Tamming should prepare a draft judgment reflecting these reasons and have it approved by Mr. Thind as to form and content, and then submit it to the court for my signature.

Sproat

Released: March 25, 2025