r v. Public Accountants Council for the Province of Ontario, 2024 ONSC 980

CITATION: Metro 1 Development Corp Ltd. et al v. Michael Garron Hospital, 2024 ONSC 980 COURT FILE NO.: CV-22-00691620-0000 DATE: 20240214 SUPERIOR COURT OF JUSTICE - ONTARIO RE: METRO 1 DEVELOPMENT CORPORATION LTD., 8441553 CANADA LTD. cob COFFEE HOUSE, and 1916179ONTARIO LTD. cob ATHEN’S BAKERY Plaintiffs AND: MICHAEL GARRON HOSPITAL (MGH) formerly known as TORONTO EAST GENERAL HOSPITAL Defendant BEFORE: Cavanagh J. COUNSEL: Gary M.

Caplan and Aram Simovonian, for the Plaintiffs (Moving Parties) Alexander Melfi, for the Defendant (Responding Party) IN WRITING COSTS ENDORSEMENT [1] The Defendant Michael Garron Hospital (“MGH”) seeks an order for costs of a motion by the Plaintiffs for a determinationof their rights as head tenant and sub-tenants in connection with a written lease agreement made between the Plaintiff Metro 1Development Corporation Ltd. (“Metro”) as tenant with MGH as landlord.

The other Plaintiffs are subtenants of Metro. [2] The Plaintiffs’ motion was dismissed. [3] MGH seeks costs of this motion on a substantial indemnity scale in the amount of $73,034.95. [4] MGH submits that costs on an elevated scale should be awarded on the ground that the Plaintiffs made unfoundedallegations of bad faith conduct by MGH in the manner it dealt with the Plaintiffs and in the manner in which MGH presented itsevidence to the Court.

MGH also relies on an offer to settle (which was not accepted) dated January 20, 2023 by which, among otherthings, MGH offered that Metro 1 could continue to operate the Coffee House until October 23, 2023, that MGH and Athens Pastrieswould enter into a new lease on the same terms as the Lease Agreement at issue (with a few exceptions), and that the Plaintiffs’ actionwould be dismissed without costs. [5] I do not agree that the Plaintiffs engaged in conduct in this litigation that qualifies as reprehensible and justifies an award ofcosts on an elevated scale.

The offer to settle does not trigger costs consequences under rule 49.10 of the Rules of Civil Procedure thatentitle MGH to an award of costs on a substantial indemnity scale. [6] MGH is entitled to costs of this motion on a partial indemnity scale. [7] MGH seeks costs on a partial indemnity scale in the amount of $49,595.65 comprised of fees of $41,485.50, HST on fees of$5,393.12, disbursements of $2,410.55 and HST on disbursements of $306.48. The Bill of Costs of MGH for the motion describes theactivities for which legal services were provided as a single block description.

The hours expended are not shown by reference toparticular activities. As a result, I am unable to identify who performed the tasks and I am unable to assess the reasonableness of the timeexpended for particular tasks. [8] The Plaintiffs submit that the hours claimed by MGH for four lawyers (124.5 hours) plus time spent by law clerks, isunreasonable, unfair, excessive and disproportionate. They rely on their own Bill of Costs for this motion in which, on a partialindemnity scale, shows costs of $30,391.35 comprised of fees of $25,600 (based on 87.7 hours) together with HST and disbursements. [9] In Boucher v.

Public Accountants Council for the Province of Ontario, , at para. 26, the Court of Appealheld that the fixing of costs is not a mechanical exercise and, overall, the objective is to fix an amount that is fair and reasonable for theunsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant. [10] This motion was important to the parties. It raised issues of moderate complexity. The Plaintiffs relied on two affidavits andthree motion records. MGH relied on two responding affidavits. There were three days of cross-examinations.

The hearing wasconducted over ½ day. [11] When I consider the factors in rule 57.01 and the principle in Boucher, I fix costs to be paid by the Plaintiffs to MGH in theamount of $40,000 all-inclusive. This amount is fair and reasonable and within a range of costs that the Plaintiffs would reasonablyexpect to pay if their motion was unsuccessful.

Cavanagh J.