SUPERIOR COURT OF JUSTICE - ONTARIO
RE: BEDROS (PETER) AVEDIAN, CLAUDIO PETTI and MARIO D'ORAZIO, Plaintiffs
AND:
ENBRIDGE GAS DISTRIBUTION INC. operating as ENBRIDGE GAS DISTRIBUTION, ENBRIDGE SOLUTIONS INC. operating as ENBRIDGE ENERGY SOLUTIONS, ENBRIDGE INC., LAKESIDE PERFORMANCE GAS SERVICES LTD. operating as LAKESIDE GAS SERVICES, Defendants
AND:
ALPHA DELTA HEATING CONTRACTOR INC. and AUBREY LEONARD DEY, Third Parties
AND:
TQB HEATING and AIR CONDITIONING INC., BRENTNOL BISHOP a.k.a. BRENT BISHOP, ENBRIDGE SOLUTIONS INC. operating as ENBRIDGE ENERGY SOLUTIONS, and ENBRIDGE INC., Fourth Parties
BEFORE: Schabas J.
COUNSEL: Rocco A. Ruso, for the Plaintiffs
James Norton and Tredegar Shea, for Enbridge Gas Distribution Inc. operating as Enbridge Gas Distribution and Lakeside Performance Gas Services Ltd. operating as Lakeside Gas Services
C. Kirk Boggs and Michael Dunk for Alpha Delta Heating Contractor Inc. and Aubrey Leonard Dey
Christopher Morrison and Margaret Klassen for TBQ Heating and Air Conditioning and Brentol Bishop A.K.A. Brent Bishop
HEARD: In writing
costs endorsement
Overview
1Following a four-week trial I dismissed this action in Reasons for Judgment released on October 7, 2025: Avedian et al. v. Enbridge Gas Distribution Inc. et al., 2025 ONSC 5700 (the “Reasons”). The parties were unable to agree on costs. A case conference was held and I directed the defendants and the plaintiffs to deliver costs submissions of no more than 10 pages, not including attachments. For the purposes of this Costs Endorsement, I adopt the defined terms from the Reasons.
2Both sides provided submissions of 10 pages and they have both provided Reply and Sur-Reply submissions of the same length. Although the defendants asked that I not review the Sur-Reply submissions as they were not permitted by me, a review of my endorsement and subsequent direction shows that I did not explicitly permit Reply submissions either. It is helpful to have the parties’ full submissions and I have read and considered the Reply and Sur-Reply submissions in preparing this decision
3This action was commenced in July 2012. It relates to an explosion and fire in an apartment building which occurred in 2010. It took a long time to come to trial and I am not the first judge to say that it has had a tortuous history. Although little happened in the action in the first few years after it was commenced, productions and discoveries occurred between 2016 and 2019. Between 2020 and 2024 the action saw numerous motions, including appeals to the Court of Appeal. The action was first set down to be tried in 2020, but was not ready for trial. Another trial date in January 2024 was set, but the matter could not proceed on that date either. Eventually, the trial was held before me in February, March and April, 2025.
4The trial was solely about damages. Liability had been admitted by the defendants on July 14, 2021. The plaintiffs’ claim for damages had varied through the litigation, starting with a claim for $7,500,000 and at one point the plaintiffs attempted to seek damages based on a “reinvestment” theory leading to a claim of over $70,000.000. At the close of the trial, the plaintiffs sought damages of $16,646,794.99. I found that the plaintiffs had suffered damages totalling $156,631.00. As the plaintiffs had recovered slightly more than that from their insurer, I held that the plaintiffs were not entitled to any damages and dismissed the action.
5The defendants now seek costs on a substantial indemnity basis in the amount of $1,968,155.36, plus HST of $255,860.20 and disbursements of $740,983.08 inclusive of HST. Alternatively, the defendants seek costs on a partial indemnity basis to the date of their Offer to Settle made on August 4, 2020, plus costs on a substantial indemnity scale thereafter, totalling $1,750,768.52 plus HST of $227,599.91, plus the disbursements amount already stated.
6The plaintiffs submit that there are no grounds for awarding substantial indemnity costs, and take issue with the amounts claimed, arguing the costs are excessive and unreasonable. They also argue that they should not be liable for the costs of the third and fourth parties. The plaintiffs submit that a fair and reasonable award of costs should not exceed $400,422.85 or, alternatively, $516,320.17. Put briefly, the plaintiffs submit that no costs should be awarded for the period prior to the defendants’ Offer to Settle, and that only partial indemnity costs, significantly reduced from what the defendants’ claim, should be awarded thereafter. The plaintiffs also dispute the disbursements, including the amounts for expert fees.
7For the reasons that follow, I award the defendants costs of $1,600,000.00 and disbursements of $739,433.08, both inclusive of HST.
General principles
8The awarding of costs promotes three primary objectives: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants: Fong v. Chan (1999), 46 O.R. (3d) 330 (C.A.) at para. 22.
9Under the Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 131(1), there is broad discretion in determining costs. Subrule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, lists factors to be considered. In addition, the court should have regard to the principle of proportionality and seek to balance the indemnity principle with the objective of facilitating access to justice. As r. 1.04(1.1) states:
In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
10The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances: Boucher v. Public Accountants Counsel for Ontario (2004), 71 O.R. (3d) 291 (C.A.). In Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66, Epstein J.A. stated at para. 52:
The overriding principle is reasonableness. If the judge fails to consider the reasonableness of the costs award, then the result can be contrary to the fundamental objective of access to justice. Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant. In [Boucher], this court emphasized the importance of fixing costs in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding at para. 37, where Armstrong J.A. said “[t]he failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice.”
11The awarding of costs is not an exact science. As the overarching principle is that costs must be fair, reasonable, and proportionate, the court need not engage in an exact measure or detailed analysis of the dockets: Boucher, at para. 26; Harley v. Harley, 2023 ONSC 4611, at paras. 34-35; Bender v. Dulovic, 2023 ONSC 4753, at paras. 24-25; Persampieri v. Hobbs, 2018 ONSC 368, at para. 33, citing Zesta Engineering Ltd. v. Cloutier (2002), 21 C.C.E.L. (3d) 161 (Ont. C.A.), at para. 4; Brophy v. Harrison, 2019 ONSC 4377, at para. 15, citing Apotex Inc. v. Egis Pharmaceuticals (1991), 4 O.R. (3d) 321 (C.A.).
12An award of costs on a substantial indemnity basis is exceptional. As the Court of Appeal stated in Davies, at para. 40:
… while fixing costs is a discretionary exercise, attracting a high level of deference, it must be on a principled basis. The judicial discretion under rules 49.13 and 57.01 is not so broad as to permit a fundamental change to the law that governs the award of an elevated level of costs. Apart from the operation of rule 49.10, elevated costs should only be awarded on a clear finding of reprehensible conduct on the part of the party against which the cost award is being made.
13An elevated award of costs may be justified when the conduct of the unsuccessful party is considered reprehensible, egregious and worthy of sanction. The mere fact that the unsuccessful party committed misconduct giving rise to the proceeding is generally not a sufficient basis for substantial indemnity, as the successful party can be compensated through an award of damages: Hunt v. TD Securities Inc. (2003), 66 O.R. (3d) 481 (C.A.), at paras. 129-133.
14In circumstances where courts award costs on an elevated scale, they may provide either full or substantial indemnity to the successful party.
15An elevated award of costs is usually based on conduct during the litigation. Generally, the case for elevated costs arises where serious but unfounded allegations of wrongdoing have been asserted and pressed by the unsuccessful litigant, or the losing party conducted the litigation in an oppressive or unreasonable manner, unnecessarily increasing the length and expense of the action which the court finds worthy of sanction. However, as Epstein J.A. stated in Davies, at para. 45:
Of course, a distinction must be made between hard-fought litigation that turns out to have been misguided, on the one hand, and malicious counter-productive conduct, on the other. The former, the thrust and parry of the adversary system, does not warrant sanction: the latter well may. In [Apotex], substantial indemnity costs were justified as a means [at para. 8] "to discourage harassment of another party by the pursuit of fruitless litigation . . . particularly where a party has conducted itself improperly in the view of the court". [Citations omitted.]
16One example of misconduct giving rise to elevated awards is evidence tampering: see e.g. Turtle Creek Landscape Inc. v. Summit Auto Brokers Inc., 2018 ONSC 512, at para. 6. Another example is “conduct reflecting a patent and persistent disregard for the court’s processes”: Tridelta Investment Counsel Inc. v. GTA Mixed-Use Developments GP Inc., 2024 ONSC 3543 at para. 27.
The claim for substantial indemnity costs
Conduct of the plaintiffs supporting elevated costs
17The defendants submit that “this case reflects a profound misuse of the civil justice system”, describing the plaintiffs as taking a “scorched earth” approach to the case. The plaintiffs, the defendants argue, “converted a modest, fully insured loss into a thirteen-year effort to obtain tens of millions of dollars.” In particular, the defendants refer to “chronic non-production, shifting and unpled damages theories, improper motions, selective and occasionally fabricated documentation, and expert evidence divorced from contemporaneous records”, all of which, the defendants say, forced them to incur large and unnecessary costs “simply to bring the matter to trial in a coherent form.” As the defendants put it:
Where a litigant disregards the compensatory purpose of tort law, advances claims with no air of reality, and rejects a reasonable Rule 49 offer that exceeds any credible measure of loss, substantial indemnity costs are not only justified but necessary to protect the integrity of the system and prevent the successful party from bearing the consequences of unreasonable litigation conduct.
18Put against this is the plaintiffs’ submission that I made no judicial finding of egregious, malicious or abusive conduct in my Reasons. Nor, they submit, was there any reprehensible conduct which would give rise to an elevated costs award. A failure to settle, and a case’s lack of merit do not, on their own, lead to higher costs awards. The plaintiffs also argue that a plaintiff should not be “penalized with substantial indemnity costs merely because they are significantly mistaken about the quantum of damages.” On this point, the plaintiffs highlight the fact that they were “centimetres away from neutralizing the set-off and achieving a net, positive damages award plus entitlement to pre-judgment interest.”
19In my view there is much to support an award of substantial indemnity costs based on the way the case was conducted. The plaintiffs’ damages claim shifted several times, necessitating responses from the plaintiffs and court intervention preventing the pursuit of unfounded claims that would have prejudiced the proceeding. The action was delayed due the plaintiffs’ failure to make disclosure and be ready for trial when dates had been set. D.A. Wilson J. (as she then was), who was the case management judge from August 2021 until her appointment to the Court of Appeal in May 2024, observed in June 2022, in dismissing a motion to amend the claim to permit a new theory of damages, that there had been “ample time” for the plaintiffs to articulate their claim for damages: Avedian v. Enbridge Gas Distribution Inc., 2022 ONSC 3343 at para. 66.
20In in her subsequent decision in April 2024 dealing with several motions brought by the plaintiffs, including seeking to advance yet another theory of damages, D.A. Wilson J. stated that “[t]he Plaintiffs cannot complain of delay and an inability to get to trial when the theory of the Plaintiffs’ losses continues to change”: Avedian v. Enbridge Gas Distribution, 2024 ONSC 2376 at para. 86. That decision provides a helpful summary of the tortuous proceedings this case has seen, which is the fault of the plaintiffs.
21In her Costs Endorsement of September 9, 2024, dealing with costs following three motions she heard, two of which she described as “tactical”, reported as Avedian v. Enbridge Gas Distribution, 2024 ONSC 5285 at paras. 14 and 15, D.A. Wilson J. stated:
The reason that the case did not move forward to trial lies solely with the Plaintiffs for their refusal to commit to a theory of proper damages. This position necessitated a motion on a proposed amendment to the statement of claim, which I heard in March 2022 and dismissed with lengthy written reasons in June 2022. The plaintiffs appealed that order to the Court of Appeal for Ontario and their appeal was dismissed by reasons released in April 2023.
Following the decision of the Court of Appeal for Ontario, counsel indicated they were content to fix a trial date, which I set for January 2024. The Plaintiffs then served an expert report from Janterra containing a new theory of damages, which the Defendants objected to on the basis that it had not been pleaded or advanced in the litigation. Once again, the Plaintiffs’ position necessitated a motion for directions for a determination on the ambit of the damages the Plaintiffs could advance at trial. This motion, and the Plaintiffs’ other two motions, resulted in the trial date being vacated.
22It must be recognized that the plaintiffs have already been sanctioned with substantial indemnity costs for some of the interlocutory motions. Those costs related to dealing with the motions and are not to be revisited. However, the frequent shifting of positions required responses from the defendants. Cancelled trial dates resulting from unreasonable and unfounded positions and changes in position taken by the plaintiffs added unnecessary costs to the defendants in defending the litigation and were part of the abusive way in which the litigation was conducted.
23Egregious conduct by the plaintiffs was also identified by me at trial, although I may not have described that conduct in those terms in my Reasons.
24Perhaps the best example of this is the claim that the elevators were damaged by the explosion and fire – a topic which took up considerable time at the trial as it became a major plank of the plaintiffs’ case about the impact of the fire and had to be addressed by several witnesses.
25This claim was not asserted following the explosion in 2010. The plaintiffs asserted this claim for the first time during discoveries in 2017.
26There was no evidence to support the claim that the elevators were damaged by the explosion and fire. It was concocted years later. Worse, the assertion by Avedian that the modernization of the elevators had to be advanced because of the supposed damage from the explosion and fire was “demonstrably false” (Reasons, para. 52), as the elevator modernization contract had been signed prior to the explosion and fire. Worse still, this contract was only disclosed one week before trial even though the plaintiffs and their counsel were clearly aware of it, having provided it to at least one of their experts years earlier. This claim should never have been advanced. This is egregious conduct worthy of sanction.
27The very late production of the elevator contract is but one example of the plaintiffs’ failure to produce records through the course of the litigation, an issue that contributed to the postponement of the 2020 trial date. Some documents, like the elevator logbook, were never disclosed, even though the plaintiffs had legal counsel, Ms. Carter, on the scene within days of the explosion. Other documents that were produced or obtained independently by the defendants flatly contradicted Avedian’s evidence, which I found to be “largely self-serving and unreliable.” The claim for increased insurance premiums is an example of selective disclosure. The plaintiffs only produced portions of the policies to show that the cost went up after the fire, but failed to produce the full policies that showed increased coverage which largely explained the increased cost. This selective disclosure was misleading to the defendants and to the court.
28Another example of misconduct is the Orion Group invoice, purportedly issued on July 10, 2015, to 1815212 Ontario Inc. (“1815”), which was unsupported and never provided to the purchasers of 1815. In my Reasons I described the invoice as “self-serving.” Indeed, it was likely concocted by the plaintiffs to add $331,655 to their damage claim, and to which the defendants had to respond. This, too, is egregious misconduct.
29As I noted in my Reasons, at paras. 190-191:
…on material issues, the contemporaneous documents, once finally produced or obtained, undermined the plaintiffs’ assertions. No explanation was provided for the failures in disclosure, or for the failure to call people with direct knowledge of the claims, such as the building superintendent, or the elevator technicians, to give just two examples.
The plaintiffs have had almost 15 years to gather and present evidence supporting Avedian’s assertions. One can reasonably infer from the failure to call witnesses with direct knowledge of the situation in the building who could provide evidence, if it exists, of any link between vacancies and other claims of losses allegedly suffered over five years, to the explosion and fire in the laundry room, is that there is no such evidence.
30Furthermore, I agree that the plaintiffs’ conduct of the case reflected a “scorched earth” approach, where no concessions were made and theories were advanced to the end that were tenuous at best and abusive at worst. As the Court of Appeal held in Labanowicz v. Fort Erie (Town), 2018 ONCA 343, 422 D.L.R. (4th) 651 at para. 27, a party is “entitled to employ whatever litigation strategy it deems fit. However, there are consequences to such an aggressive strategy”, noting that the failure to make out aggressive claims or defences at trial may lead to an increased costs award. Here, of course, the withholding of relevant documents is not a strategy a party is “entitled to employ”, nor is the reliance on an invoice concocted to support a claim: see, e.g., City of Kawartha Lakes v. Gendron et al., 2022 ONSC 4603.
The Offers to Settle
31The defendants offered to settle the action by paying the plaintiffs $500,000, plus costs to the date of the offer as well as pre-judgment interest. This offer remained open for acceptance until the commencement of the trial. As the plaintiffs would have achieved a more favourable outcome by accepting the offer, the defendants submit that this supports an award on a substantial indemnity basis at least from the date of the offer forward.
32In contrast, the plaintiffs had made an Offer to Settle on July 29, 2019, which also remained open for acceptance until the commencement of the trial. That offer called on the defendants to pay the plaintiffs $42,500,000, plus interest, costs and disbursements.1
33The defendants describe their offer as “exceedingly generous”, as it was for an amount considerably larger than the damages estimated by their experts, and the damages I found the plaintiffs had in fact suffered. However, the defendants’ offer also took into account the risk of a larger award and the very substantial costs that would be incurred in taking the matter to trial. The defendants also point out that they had no “comparable off ramp”, as the plaintiffs’ claims far exceeded the defendants’ estimate of damages such that the plaintiffs’ demand of $42,500,000 “made a negotiated resolution impossible.”
34Rule 49 of the Rules of Civil Procedure does not provide for an automatic award of substantial indemnity costs to defendants who do better than their offer to settle. However, Rule 49.13 provides that “the court, in exercising its discretion with respect to costs, may take into account any offer to settle made in writing, the date the offer was made and the terms of the offer.”
35A reasonable offer made by a defendant which ought to have been accepted by a plaintiff, therefore, can support an elevated award of costs against a plaintiff from the date of the offer: S & A Strasser Ltd. v. Richmond Hill (Town) (C.A.) (1990), 1 O.R. (3d) 243 (C.A.).
36In OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2021 ONCA 520, at paras. 83-88, an award of substantial indemnity costs for the period following the defendants’ offer was upheld. In that case, there was also misconduct supporting an elevated award from the date of trial; however, the Court held that the trial judge did not err in awarding substantial indemnity costs based on the offer alone, from the date of the offer.
37I am mindful of the caution from the Court of Appeal, post-Strasser, that “[a]part from the operation of rule 49.10, elevated costs should only be awarded on a clear finding of reprehensible conduct”: Davies, at para. 40. Put another way, “[o]utside of rule 49.10, to make such an award as a matter of judicial discretion the court must find that the party has been guilty of egregious misconduct in the proceeding”: Iannarella v Corbett, 2015 ONCA 110, 124 O.R. (3d) 523 at para. 139.
Conclusion on substantial indemnity
38In this case, I find that there is egregious and abusive conduct by the plaintiffs in this proceeding supporting an elevated award. That conduct goes well beyond simply advancing a case that had no merit. Since at least 2020, the plaintiffs’ changes in position, attempts to advance new theories, and failure to produce important documents caused trial dates to be vacated and prolonged the action, among other things, and constitute abusive conduct worthy of sanction. My findings regarding Avedian’s evidence and the presentation of the case at trial, which I have discussed above, demonstrate egregious conduct by the plaintiffs.
39I also have regard to the offers to settle made by both sides, which favour, but do not on their own justify, an award of costs on a substantial indemnity scale. As to the assertion by the plaintiffs that they almost won, coming within “centimetres” of achieving a net positive damage award, this ignores the offer, and asks the Court to disregard the many millions sought, right up to the end of trial, based on utterly unfounded theories of damages. If the plaintiffs had limited their claim to proximate damages during a reasonable repair period, this action might have settled a dozen years ago, if it had been started at all.
40Taking all these factors into consideration, I find that the plaintiffs should pay the defendants their costs on a substantial indemnity scale from the date of the defendants’ offer forward. That date, August 4, 2020, post-dates the quite unreasonable offer made by the plaintiffs and is almost a year after Ferguson J. adjourned the first trial due, in part, to the failure of the plaintiffs to provide a clear position on damages. I am aware that this date is before the defendants admitted liability on April 21, 2021; however, the vast majority of time spent in this action related to damages.
41Prior to August 4, 2020, the defendants shall be awarded costs on a partial indemnity scale. There is no merit to the plaintiffs’ position that there should be no costs prior to Augst 4, 2020. The general rule is that costs follow the event, and I have been given no compelling reason why that should not be the case for the costs incurred for the first eight years of the litigation.
Third- and fourth- party issue
42The plaintiffs argue that they should be responsible only for the defendants’ costs, and not those of the third and fourth parties, citing the “general rule … that costs awarded to a third party should be paid by the defendant”: Bonello v. Gores Landing Marina (1986) Limited, 2016 ONSC 6674, rev’d on other grounds 2017 ONCA 632, 39 C.C.L.T. (4th) 175. This is based on the principle that a plaintiff who is unsuccessful against a defendant should not bear the costs incurred by a party the plaintiff did not sue. However, this general rule has exceptions which may apply depending on the circumstances of the case.
43One exception is when “the third party proceedings followed naturally and inevitably upon the institution of the [plaintiff's] claim”: Sanofi Pasteur Limited v. UPS SCS, Inc., 2015 ONCA 88, 124 O.R. (3d) 81, at para. 77, leave to appeal refused [2015] S.C.C.A. No. 152, quoting from Greater Toronto Airports Authority Assn. Inc. v. Foster Wheeler Ltd., 2011 ONSC 3377, at para. 53. This exception will depend on the circumstances of the case and is discretionary.
44Here, the plaintiffs rely on the admission of liability provided by letter on April 21, 2021, on behalf of Enbridge Gas Distribution Inc. (“EGD”) and Lakeside Performance Gas Services Ltd. (“Lakeside”), the two defendants that continued to trial on damages. That admission of liability for the explosion also advised that those defendants had “entered into an agreement respecting liability with the third and fourth parties, …with the result that there is no remaining lis between the plaintiff and EGD, Lakeside, Dey and Bishop.” The reference to Dey and Bishop is to the third and fourth parties.
45As a result, the plaintiffs submit that it was not necessary to deal with the third- and fourth-party claims to resolve the dispute. Further, as the claims against them were for contribution and indemnity, the plaintiffs submit that this does not mean that they were necessary to join in the action.
46I do not accept the plaintiffs’ submission.
47The third and fourth parties were the contractor and subcontractors on site at the time of the explosion, whose negligence was the direct cause of the explosion. It was inevitable that the defendants would join their subcontractors as third and fourth parties when the plaintiffs did not name them as defendants, as they could have done in their statement of claim. The claims against the third and fourth parties were clear and direct, natural and inevitable, rather than hypothetical as was the case in Milina v. Bartsch (1985), 63 B.C.L.R. 122 (S.C.), at para. 5, relied on by the plaintiffs. As stated in Sanofi, it would “not have been difficult for the Plaintiff to foresee”, or know, that the defendants used subcontractors and that the defendants would “do all they could to either minimize or share their liability, and that this might take the form of third party proceedings”: Sanofi Pasteur Limited v. UPS SCS, Inc., 2014 ONSC 5402 at para. 9, aff’d 2015 ONCA 88, 124 O.R. (3d) 81; see also Nanak Homes Inc. v. Arora et al. and Nanak Homes Inc. v. Kamco et al., 2020 ONSC 2463 at para. 42.
48I give no weight to the letter admitting liability, as the trial, and virtually all of the litigation, was about damages. The lis referred to in the letter clearly meant liability, not damages, which remained in dispute and which affected the defendants and the third and fourth parties. Further, the third and fourth parties continued to participate in the action following the admission of liability. They acted in a common defence with the defendants and were awarded costs in interlocutory proceedings as “defendants” in the years leading up to the trial. The defendants’ offer to settle was made by the defendants and the third and fourth parties together, and the third and fourth parties participated in the trial as their interests were at stake as well.
49It also bears mentioning, and as I discuss below, that counsel for the defendants and the third and fourth parties divided the work to avoid duplication of effort and costs. Each witness was examined by only one counsel from among the defendants and the third and fourth parties.
50Accordingly, I find that the plaintiffs are liable for the costs incurred by the third and fourth parties.
Quantum
51The plaintiffs take issue with the amounts sought. They note that legal fees are sought for time spent by 31 different lawyers totalling, collectively, 6,887.25 hours which is more that two years of 8-hour days. The plaintiffs complain that about 70% of the time was spent by senior lawyers and argue that the plaintiffs should not have to bear the costs of transitions and duplication of work due to changing counsel.
52The plaintiffs, in contrast, have filed a Costs Outline showing their lawyer only spent 682.1 hours on the matter from its inception to the end of the trial.
53The plaintiffs’ assertion of only spending 682 hours on this is impossible to accept. The litigation spanned 13 years. There were productions, discoveries, numerous lengthy motions, appeals and motions to the Court of Appeal, experts to retain and consult, not to mention preparation for and attendance at a 4-week trial followed by preparation of extensive written submissions and closing argument. For litigation of this complexity – made more complex by the plaintiffs, involving many theories, much evidence, and many experts – a claim of 682 hours is completely unrealistic and I do not accept it.
54There are also inconsistencies in the plaintiffs’ claim for costs. Before D.A. Wilson J., the plaintiffs asserted one of their lawyers had spent 65 hours on trial preparation, but the Costs Outline now includes only 12 hours. Ms. Carter claims she spent 12 hours on experts, but just one of the experts’ accounts claimed 12 hours of meetings with counsel alone. The lawyer’s claim is simply not credible. There were extensive expert reports from both sides and any responsible and competent counsel would have had to spend dozens and dozens of hours reviewing them. Additionally, rates claimed in the plaintiffs’ earlier bills of costs were higher than those in the Costs Outline provided to me.
55In these circumstances, I give little weight to the plaintiffs’ Costs Outline which grossly understates the time spent on this matter, among other things.
56Turning specifically to the quantum of costs associated with lawyer time, I note that all the defendants other than the fourth party experienced changes in counsel, which added somewhat to the costs and which should not be borne by the plaintiffs. I am also concerned that the defendants applied a top-heavy approach to the litigation, which may support some reduction in the costs to be awarded. However, it must also be recognized that the defendants were responding to a moving target and a very large and ever-increasing damages claim.
57Recognizing that I am not to do a deep dive, or engage in line-by-line scrutiny of dockets, and in light of my decision that costs should be on a partial indemnity scale prior to August 20, 2020 and on a substantial indemnity scale after that date, I award costs to the defendants of $1,600,000.00 inclusive of HST. This reflects a significant discount on the amount claimed and gives credit to the plaintiffs’ points discussed above. On the other hand, it is considerably larger than the total partial indemnity fees sought by the defendants. In my view, taking into account all of the circumstances, this is a fair and reasonable amount which the plaintiffs ought to have reasonably expected to pay if they were unsuccessful in the action.
58Turning to the disbursements, most of the amounts claimed related to fees for Mr. Atlin and Mr. Cohen, both of whom testified at the trial. While the plaintiffs complain that the defendants’ experts’ bills are far higher than the plaintiffs’ opposing experts, the defendants’ expert evidence was much more thorough and did more than simply parrot claims and positions asserted by Mr. Avedian: see, e.g, my ruling reported as 1815212 Ontario Inc. et al. v. Enbridge Gas Distribution Inc. et al., 2025 ONSC 1243. The defendants’ experts also had to respond to changing theories of the case and new damages claims. The defendants’ expert evidence was also helpful to my decision and, while on the high side, there is no basis to say that the rates were not appropriate and the time unnecessary.
59The complaint that Mr. Hmayed’s evidence was “not responsive to any plaintiffs’ expert” has no merit. Mr Hmayed gave helpful and relevant expert evidence, addressing expected repair time, which was ultimately conceded when he testified, and the plaintiffs’ claim for damages relating to the unbuilt additional units which, like the claim regarding the elevators, had no link to the explosion and fire. I see no basis to interfere with the amount sought for his work.
60I did not hear from Mr. Poole, who was only mentioned in the defendants’ opening address. Accordingly, his fees, totalling $1,550.00, shall be deducted.
61The plaintiffs’ complaint about the participant experts is also without merit. The assertion that only Gary Howard was identified that way in my Reasons for Judgment means nothing. Their fees were reasonable and are recoverable.
62I also see no reason to interfere with the claim for trial disbursements relating to the fourth party’s counsel being from outside Toronto. Mr. Morrison was on the case from the beginning and the claim for travel and accommodation for him and his associate are reasonable.
63Accordingly, I award disbursements, inclusive of HST, to the defendants in the amount of $739,433.08.
Conclusion
64At the end of the day, costs must be fair and reasonable, having regard to the factors in the Rules, and be proportionate having regard to the size of the claim and the complexity of the matter. This was a lengthy, complex claim pursued vigorously by the plaintiffs over many years. In all the circumstances, I find that the defendants are entitled to costs in the amount of $1,600,000.00 inclusive of HST, plus disbursements of $739,433.08, inclusive of HST.
Paul B. Schabas J.
Date: March 24, 2026