Ontario Superior Court of Justice

Court File No.: CV-24-00728024
Date: 2025-06-18

BETWEEN:
Figaro Dominion Ltd. and Figaro Gate Ltd.
Applicants

– and –

The Incumbent and Churchwardens of St. Nicholas' Church and Nova Ridge Development Partners Inc.
Respondents

Howard D. Gerson, for the Applicants
Christopher Cosgriffe, for the Respondent Nova Ridge Development Partners Inc.
Kevin Sherkin and Mitchel Lightowler, for the Incumbent and Churchwardens of St. Nicholas' Church

Heard: In writing

Papageorgiou J.

Costs Endorsement

Overview

[1] I granted a permanent injunction restraining the defendant developers (the “Developer”) from obstructing a laneway and from parking directly behind the Applicants’ units. I did not grant the sought injunction requiring the Developer to remove its construction office, construction equipment, and material stored on the laneway.

[2] The Applicants seek costs on a substantial indemnity basis as against the Developer in the amount of $56,474.25 or alternatively on a partial indemnity basis in the amount of $37,931.80.

[3] The Incumbent and Churchwardens of St. Nicholas' Church (the “Church”) seek costs on a full indemnity basis against the Developer in the amount of $68,076.53.

Decision

[4] For the reasons that follow I award the Applicants $33,000 payable by the Developer and the Incumbent costs in the amount of $68,076.53.

Issues

• Issue 1: What is the appropriate scale of costs in respect of the Applicants’ claim for costs as against the Developer?
• Issue 2: What is a fair and reasonable quantum of costs to be paid by the Developer to the Applicants?
• Issue 3: Is the Incumbent entitled to its full indemnity costs from the Developer?

Issue 1: What is the appropriate scale of costs in respect of the Applicants’ claim for costs as against the Developer?

[5] The Applicants made an offer to settle on December 9, 2024, on the basis that it would not seek any relief requiring the Developer to remove anything. However, the offer required numerous things that this Court never ordered, for example that the Developer provide a designated traffic controller. Therefore, r. 49 does not apply.

[6] Two days before the hearing, on January 8, 2025, the Applicants sent an email offering to settle on the basis that there would be a consent order enjoining the Developer from blocking or preventing access to or along the laneway and/or interfering with their ability to park on the laneway. This was essentially the relief obtained but r. 49 requires the offer to be open for at least seven days for the cost consequences to apply. While I do not order substantial indemnity costs, I do take into account, in the exercise of my discretion, that the Developer could have resolved this matter prior to the hearing on essentially the same basis that was ordered. The parties would have at least avoided the additional costs incurred from two days before the hearing onwards.

Issue 2: What is a fair and reasonable quantum of costs to be paid by the Developer to the Applicants?

[7] Pursuant to s. 131(1) of the Courts of Justice Act, RSO 1990, c C.43, costs are in the court’s discretion. Rule 57 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”: Boucher v. Public Accountants Council for the Province of Ontario, para 26; Zesta Engineering Ltd. v. Cloutier, para 4; Davies v. Clarington (Municipality), 2009 ONCA 722, para 52; and G.C. v. Ontario (Attorney General), 2014 ONSC 1191, para 5.

[8] The Applicants provided a Bill of Costs that shows their partial indemnity costs were $37,931.80 inclusive of disbursements.

[9] I reject the Developer’s argument that there was divided success because the Applicants did not obtain the injunction requiring removal of the items the Developer had placed in the laneway.

[10] The Applicants succeeded on the legal issue, and they also obtained the most important injunctions sought that related to parking and the Developer not obstructing the laneway. They did not succeed on one aspect because of the delay, but this does not mean there was divided success. This was not even the most important thing to the Applicants which is evidenced from its offers which showed it was prepared to settle without removal of the items in question. The main issues were parking and blockage of the laneway and the Applicants succeeded on these issues.

[11] The matter was important to the Applicants whose tenants’ businesses were being harmed by interference with the right of way.

[12] The Developer’s own Bill of Costs uploaded prior to the hearing showed that its partial indemnity costs inclusive of HST and disbursements was $32,261.91.

[13] Therefore, taking into account the Developer’s costs, as well as the Applicants’ Bill of Costs, and all the arguments before me, the partial indemnity costs that the Developer could reasonably anticipate and which are fair and reasonable are $33,000.

Issue 3: Is the Church entitled to its full indemnity costs from the Developer?

[14] The Church requests full indemnity costs from the Developer.

[15] It entered into a Crane Swing Agreement with the Developer that permitted some of the Developer’s activities but that also required the Developer to refrain from interfering with the right of way at issue.

[16] Section 7 of the Agreement provided as follows:

The Owner shall not be liable for any loss or damage sustained by the Developer resulting directly or indirectly from the use of the North Lands or the East Lands or any part thereof or for any reason at any time whether during or after the term of this Agreement. The Developer shall be liable for all loss or damage caused to the Owner by the operations of the Developer and by the negligence or wilful act of the Developer or anyone for whom the Developer is at law responsible. The Developer shall indemnify and save the Owner harmless from and against any and all costs, expenses, claims and demands arising from any default hereunder by the Developer, and any and all claims by or on behalf of any person, firm or corporation arising from the operations of the Developer and from any act or negligence of the Developer or any agent, contractor, servant, employee, customer or invitee of the Developer or any other party for whom the Developer is at law responsible, and from and against all costs, fees, expenses and liabilities arising from or incurred in respect of any such claim or any action or proceeding brought thereon.

[17] The Church’s position is that the Developer had not complied with the Agreement and that it was dragged into this proceeding as a result. I agree.

[18] I reject the Developer’s argument that there was no relief being sought against the Church and it should not have prepared materials or a factum. In actuality, there was relief sought against the Church which was an order requiring the Church to take appropriate measures to prevent interference with the right of way. There was never any amendment to the Notice of Application withdrawing this request for relief although ultimately the Applicants did not seek any relief against the Church. Because of the Application, the Church did seek measures to have the Developer stop interfering with the right of way.

[19] As late as January 2, 2025, the Church wrote to the Developer indicating that it had not had any response from the Developer to a proposal that it made on December 18, 2024 to be let out of the litigation. The Church required the Developer to agree to conditions requested by the Applicants in their December 9, 2024 offer and the Developer did not.

[20] I reject the argument that the Church may not claim costs against the Developer relying on the indemnity because there is no cross application such that the issue must be determined in a separate proceeding. It would be foolish to require the parties to litigate this, and incur additional costs, when the court has the discretion to address this right now.

[21] Although there has been no finding that the Developer breached the Crane Swing Agreement, there is no need to find a breach for the indemnity to apply. The indemnity covers “all loss or damage” to the Church caused by the Developer’s operations and “all costs, expenses, claims and demands arising from any default” under the agreement, and “all costs, fees, expenses and liabilities” from any claim or action arising from the Developer’s operations.

[22] Pursuant to the clear and unambiguous wording of the indemnity, the Church is entitled to all its costs from the Developer because there has simply been a claim against it which was caused by the Developer’s operations. The Church put the Developer on notice that it would be seeking its full indemnity costs so the Developer cannot be surprised.

[23] Ordinarily, the Applicants would have to pay the Church’s costs. However, for the following reasons, it would be unjust to require the Applicants to pay these costs: it is the Developer’s conduct that led to this proceeding and to the Church being added as a party; it was reasonable for the plaintiff to join these defendants together; the cause of action against the Church and the Developer related to the same facts and incident; the Church attempted to shift responsibility to the Developer in the proceeding which appears to have ultimately been successful, since the Applicants did not ultimately seek relief against it; here I take into account that the Developer failed to accept an offer on January 8, 2025 that contained the very same relief that was ordered.

[24] In all the circumstances, it is reasonable and just to require the Developer to pay the Church’s costs.

[25] In terms of the quantum, because of the indemnity Agreement, it is fair and reasonable and within the contemplation of the Developer that if its activities resulted in a claim against the Church, the Developer would pay all costs incurred in connection with such claim.

[26] The Church also requests that if the Developer does not ultimately pay these costs that the Applicants do. I disagree that the Applicants should be responsible in this case. There is no evidence before me that the Developer does not have an ability to pay. The evidence leads me to the opposite inference since the Developer is engaged in a major construction project, it owns property, and as such execution after judgment is possible.

[27] If I am wrong about this, I would fix the costs to be paid by the Applicants in the event the Developer does not pay, to be $33,000, the exact same costs that I determined the Applicants were entitled to on a partial indemnity basis.

Conclusion

[28] Therefore, I award the Applicants costs as against the Developer in the amount of $33,000 payable within 10 days and I award the Church costs in the amount of $68,076.53 payable by the Developer within 10 days.

Papageorgiou J.
Released: June 18, 2025