Court File and Parties

Court File No.: CV-22-00684647
Date: 2025-05-20
Court: Ontario Superior Court of Justice

Between:
Adam Bellisario, Adrian Ortiz, Akshaykumar Naik, Omibaba Ltd., Amir Siddiqui, Arunan Sivakumar, Brian Ferreira, Christopher Ortiz, Devon Pearson, Jay Atawala, Shiv Holding Inc., Kailee Trigiani, Michael Ventura, Katelyn Meadwell, Kyle Camilleri, Manju Dhankar, Deepak Kumar, Mariangel Urdaneta, Rafael Enrique Cabrera Salerno, Mayuran Ponampalam, Nelson Moreira, Stephanie Aguiar Gaipo, Nicole Da Silva, Nirosiga Elankeeran, Rolando Sabado, Grace Sabado, Sam Natur, Sandra D'Avella, Alfonso D'Avella, Sasa Mudrinic, Paula Lionetti, Shawn Moore, Stefany D'Avella, Stephen Harkness, Dina Harkness, Zoya Moattar, Kamalpreet Saral, Baljot Saral, Jaspreet Parmar, Inderjit Singh Sajjan, and Mohammad Usman Khalid
Applicants
– and –
2200 Bromsgrove Development Inc.
Respondent

Applicant Counsel: Sean Foran and Lia Boritz
Respondent Counsel: Rolf Piehler and Stuart Gordon

Heard: March 4, 2025

Judge: Panagiota (Toula) Papageorgiou

Costs Endorsement

Overview

[1] I granted the Applicants a declaration that the Respondent developer (the “Developer”) was not entitled to charge them certain adjustment amounts on closing pursuant to their respective agreements of purchase and sale (the “APSs”) and directed a reference on damages.

[2] The Applicants were successful and presumptively entitled to their costs.

[3] The Applicants seek costs on a substantial indemnity basis in the amount of $117,259.38 inclusive of HST and disbursements or alternatively on a partial indemnity basis in the amount of $88,743.94 also inclusive of HST and disbursements.

Decision

[4] For the reasons that follow I award the Applicants their partial indemnity costs in the amount of $88,743.94 inclusive of HST and disbursements.

Issues

• Issue 1: What is the appropriate scale of costs?
• Issue 2: What is the fair and reasonable quantum of costs the Developer should be required to pay?

Analysis

Issue 1: What is the appropriate scale of costs?

[5] The court has the discretion to award substantial indemnity costs, but such costs are “rare and exceptional” and only warranted where there has been reprehensible, scandalous or outrageous conduct on the part of a party: see DUCA Financial Services Credit Union Ltd. v. Bozzo, 2010 ONSC 4601, para 5; Foulis v. Robinson; and most recently Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, para 43.

[6] This matter involved the interpretation of a standard form contract and a group of consumers who were faced with exorbitant closing costs based on a false premise that the Developer could pass these charges on. I concluded that in doing so the Developer failed to act honestly, impartially or in good faith. Then it sought to shield itself by relying on a Vendor’s Certificate and then refusing to answer questions related to amounts it spent and was attempting to pass on to the Applicants.

[7] The Applicants obtained an order from Associate Judge Eckler requiring the Developer to answer certain refusals.

[8] The Developer sought to appeal Associate Justice Eckler’s decision on refusals. There had to be an attendance at Civil Practice Court. As a result of the Developer’s intention to appeal Associate Justice Eckler’s decision, the hearing date for the application was vacated. Then the Developer withdrew its motion and there had to be another attendance at Civil Practice Court to reschedule the Application.

[9] As a result, only the legal issue could be determined and there must be a reference on damages. The Developer’s conduct has led to the need for this proceeding to be bifurcated.

[10] Although the Developer’s conduct certainly increased the costs and it took unreasonable and overly aggressive positions on the interpretation of the agreements, the conduct does not rise to the level of being scandalous, reprehensible or outrageous: 2682200 Ontario Inc., Devin Pritchett v. 2687737 Ontario Inc., 2025 ONSC 1254, para 8; 2287913 Ontario Inc. v. ERSP International Enterprises Ltd., 2017 ONSC 5621, paras 16-21; 2598508 Ontario Inc. v. 2394049 Ontario Inc. o/a Goodman Green Solutions, 2021 ONSC 6050, paras 2-8; Gomes v. Da Silva, 2024 ONSC 1171, paras 5-7, 16-18; Sekulovski v. Arkin, 2021 ONSC 1401, paras 8-16.

Issue 2: What is the fair and reasonable quantum of costs the Developer should be required to pay?

[11] Pursuant to s. 131(1) of the Courts of Justice Act, RSO 1990, c C.43, costs are in the discretion of the court. Rule 57 of the Rules of Civil Procedure sets out the factors which courts should have regard to when awarding costs. The overall objective is “to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant”: Zesta Engineering Ltd. v. Cloutier, para 4; Boucher v. Public Accountants Council for the Province of Ontario, para 26; Clarington (Municipality) v. Blue Circle Canada Inc., 2009 ONCA 722, para 52; and G.C. v. Ontario (Attorney General), 2014 ONSC 1191, para 5.

[12] The Applicants were wholly successful in securing the declarations they sought. The proceeding was moderately complex given the number of Applicants and the nature of the contractual interpretation issue. The issues were important to the Applicants.

[13] As noted, throughout the process the Developer refused to provide information related to the expenses that it was passing on to the Applicants.

[14] The Developer’s conduct in this regard has increased costs because there must be a bifurcated proceeding now to determine damages. I agree that if the Developer had provided an itemized breakdown of amounts it paid to the City of Mississauga or utility service providers, there would be no need for a reference on damages.

[15] As well, prior to the hearing on March 4, 2025 the Developer did not serve its own costs outline. It also did not provide one with its cost’s submissions provided to me. The last detail that the Developer had provided the court was a costs outline dated February, 2024, one full year prior to the argument and which had been prepared by the Developer’s former counsel who did not argue the matter before me. This outline showed that as at February 2024, the Developer had incurred partial indemnity costs of approximately $27,000. This outline did not contain any detail as to time spent by lawyers or what they spent their time on and is wholly unhelpful to assessing the costs request of the Applicants after the argument before me.

[16] Where a party fails or refuses to provide a costs outline or evidence as to their fees, a court may infer their costs matched those of the successful party: Frazer v. Haukioja, 2010 ONCA 249, para 73.

[17] I have considered the hours spent and the rates charged which are reasonable. I note that there was no criticism of these in the Developer’s responding submissions. Nor did they take any position regarding the partial indemnity costs claimed.

[18] Therefore, I find that the costs claimed by the Applicants on a partial indemnity basis are fair and reasonable and within the reasonable expectations of the Developer and award the Applicants the partial indemnity costs they requested in the amount of $88,743.94 inclusive of HST and disbursements.

Panagiota (Toula) Papageorgiou
Released: May 20, 2025