Court File and Parties
Court File No.: CV-24-94769 Date: November 3, 2025 Superior Court of Justice – Ontario
Re: Caivan (Fox Run) Limited, Plaintiff -and- Abhishek Gangwal and Suhani Gangwal, Defendants
Before: Justice A. Doyle
Counsel: Charlene Kavanagh & Caroline Bedard for the Plaintiff Sherif Rizk for the Defendants
Heard: In writing
Costs Decision
DOYLE, J.
Overview
1On October 21, 2025, the Plaintiff, Caivan (Fox Run) Limited (Caivan) obtained summary judgment for damages in the amount of $106,012.93 against the Defendants (Abhishek and Suhani Gangwal) for their failure to complete the purchase of a property pursuant to an agreement of purchase and sale (APS) on August 16, 2023.
2Amendments to the APS permitted an assignment of the agreement and a right to the Defendants to list the property for sale on Multiple Listing Service (MLS) or other third-party platforms.
3On January 11, 2023, the Plaintiff demanded that the Defendants remove the listing of the property on MLS. The Defendants removed the listing on February 7, 2023, and despite being told by Caivan on March 21, 2023 that they could relist the property on MLS, the Defendants told Caivan that the contract was at an end and demanded the return of their deposit.
4The court dismissed the Defendants' request for summary judgment against the Plaintiff for negligent misrepresentation, unjust enrichment and breach of contract in the amount of $125,452.50 and their alternative claim for a return of the deposit of $75,000 and $10,452.50 as commissions repaid to the Plaintiff as well as the loss of opportunity for potential profit on resale in the amount of $40,000.
5The court found that there was not an anticipatory breach justifying a termination of the APS when the Plaintiff refused to allow the purchasers to list the property on MLS for a period of approximately two months. The court found that there was not a breach that amounted to a repudiation of the contract nor representations that would entitle the purchasers to a rescission of the agreement.
6The court also found that even if the purchasers believed that they had lost an opportunity by the refusal of the Plaintiff to allow the listing, there was no evidence led of how they arrived at the amount of $40,000.
7If the parties were not able to resolve the issue of costs, they were to provide their costs submissions.
8Having considered their costs submissions, their bill of costs, and offers to settle and the Rules of Civil Procedure, the court awards the Plaintiff costs in the amount of $10,000.00
Plaintiff's Position
9The Plaintiff requests $29,777.87 in costs which would be $9,894.39 on a partial indemnity basis up to the date of its Rule 49 offer of March 11, 2025, plus $19,883.48 on a substantial indemnity basis from March 12, 2025, to September 22, 2025, the hearing of the summary judgment.
10Their offers to settle show:
An offer to settle dated March 11, 2025 offering to settle the matter for $91,132 representing $74,500 as damages and $8,700 as costs and $7,932 as prejudgment interest;
On August 25, 2025, the Plaintiff's offer to settle was for an all-inclusive amount of $47,000. This offer was repeated on September 4, 2025. The Defendants did not accept these offers.
11The Defendants' offer to settle dated September 9, 2025 provided that the Plaintiff pay $75,000 plus costs on a partial indemnity basis. The Plaintiff rejected this offer.
12The Plaintiff's offers to settle were Rule 49 offers and hence the Plaintiff is entitled to costs on a substantial indemnity from the date of the offers to the date of the hearing.
Defendant's Position
13The Defendants submit that no costs should be awarded, or costs should be reduced to an amount of $10,000.
14The Defendants submit that they advanced bona fide arguments and the court specifically acknowledged that there were legitimate contractual interpretation issues.
15The court considered that some of the facts advanced by the Defendants included the following:
the final amendment formed part of the APS;
the Plaintiff's January 2023 demand to remove the listing of the property on MLS was mistaken and contrary to the final amendment;
the court found that the Plaintiff failed in its duty of honest performance; and
the court acknowledged that the Defendants had a residual claim for damages for the loss of opportunity.
16The motion involved mixed questions of fact and law including anticipatory breach, repudiation, and duty of honest performance that justified legal argument.
17The Defendants' request for discovery of the Plaintiff's employee was not made in bad faith but was instead an effort to ensure that the court had a full evidentiary record for the summary judgment motion.
18The request of costs of $29,777.87 is 28% of the judgment amount and is disproportional.
19The Defendants acted reasonably throughout.
Legal Principles
20The costs of a proceeding are in the discretion of the Court (s. 131(1) Courts of Justice Act). That discretion must be exercised on a principled basis (Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66, at para. 40). Fixing costs is not merely a mechanical exercise; the amount awarded should, considering all the circumstances, be fair and reasonable (Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.)). In a proper case, costs may be awarded against a successful party (r. 57.01 (2) of the Rules).
21As stated in Boucher, the Court must be fair and reasonable when exercising its discretion to award costs and the parties' expectation concerning the amount of a costs award is a relevant factor to be considered.
22Rule 57.01(1) of the Rules contains a non-exhaustive checklist of factors that guide the Court in its reasoning when awarding costs in the exercise of its discretion under s. 131 of the Courts of Justice Act.
Analysis
23For the reasons that follow, the court will fix the amount of costs for the motion in the cause of $10,000.00
24The Plaintiff was successful and is presumptively entitled to costs.
25I note that there were a few contractual issues at play.
26I also note that the Plaintiff acted unreasonably in misinterpreting the final amendment and demanding that the Defendants take down the listing on MLS. The Plaintiff's communications regarding these demands were assertive and inflexible.
27The Plaintiff's position persisted for two months.
28The Defendants had negotiated the ability to list the property shortly after the APS was signed.
29The Plaintiff's error in their interpretation of the final amendment was the main reason that litigation was commenced. Unfortunately, the Defendants did not call evidence to quantify their loss during the two months that they were not prepared to list the property.
30The Defendants were not entitled to consider that the contract was at an end but it certainly caused them to rethink their position.
31Given the Plaintiff's conduct, and despite the fact that they were prepared to settle the matter for less than the judgment awarded, this is a case where the court will consider the Plaintiff's unreasonable behavior in determining whether to reduce the amount of the costs award.
32I find that the Plaintiffs' actions regarding the final amendment were unreasonable and, although they did not amount to a repudiation of the contract, their actions were central to this litigation.
33Pursuant to Rule 49.1, the court has discretion with respect to the quantum of costs despite the fact that a party obtained a judgment more favourable than the terms of their offer to settle.
34In addition, in exercising its discretion under Rule 57.01(1) (i), the court may consider any other matter relevant to the question of costs.
35In Somerville v. Bank of Montreal, 2012 ONSC 5437 , at para. 6, Stimson J. awarded a defendant costs on a substantial indemnity scale in the amount of $9,500.00 for a motion to set aside the noting in default, based on a finding of unreasonable conduct by the plaintiff in the litigation.
36Accordingly, I find that the fair and proportionate amount of costs is $10,000.
Justice A. Doyle
Date: November 3, 2025