2017 ONSC 5267, 2017 ONSC 5267

CITATION : Dada v. Brantford Communities Ltd. et al, 2017 ONSC 5267 COURT FILE NO.: 17/61385 DATE: 2017-09-08 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) OLAYINKA DADA and OLUWATOYIN DADA ) ) ) D. Schmuck, for the Applicants ) Applicants ) ) - and - ) ) ) BRANTFORD COMMUNITIES LTD. and EMPIRE PLEASANTVIEW COMMUNITIES LTD. ) ) ) B. Clancy, for the Respondents ) Respondents ) ) ) ) COSTS JUDGMENT [ 1 ] This matter centered on a failed real estate transaction for a house on a lot in a subdivision of Brantford.

The applicants had alleged in their statement of claim the respondent, developer/builder had sent the closing documents to the wrong lawyer for the applicants and that fact led to the applicant being unable to close a transaction.

The applicant sought specific performance; namely, the conveyance of the lot in question or alternatively, damages which consisted of the applicant’s deposit, various moving expenses and a loss of the profit, or disparity between what the applicants would have purchased the home and lot for, and what the respondents actually sold the residence for, to a third party. [ 2 ] On July 18, 2017, this Court ruled that the confusion with respect to who had represented the applicants was the responsibility of the applicants and that they were the authors of their own misfortune in terms of not being able to close the transaction and the consequential loss of the deposit. [ 3 ] The ruling concluded with the usual invitation for submissions as to the liability and quantum of costs (if payable).

Those submissions have been received. Applicable Law [ 4 ] Section 131(1) of the Courts of Justice Act , R.S.O. 1990

chapter c-4 speaks of costs being in the discretion of the Court and the Court may determine by whom costs shall be paid and to what extent. That discretion is referenced in Rule 49.13 of the Rules of

Practice. [5] Rule 49.10 sets out consequences in the event a written offer is made in a timely fashion. Obviously, offers are encouragedwithin a system of litigation, to cause parties to reflect upon their chances of success and the costs associated with the pursuant of thelitigation. In other words, to take a clinical objective approach to that which they are embroiled in. The incentive is to make a fair offerand that there are costs consequences to the other side if they do not achieve the offer or better than.

Rule 49.10 contemplates situationsin which a plaintiff achieves something as opposed to having their action dismissed as was the case at hand. In the latter scenario theRule does not apply. Scapillati v.

Potvin Construction Limited (1999) (ON CA), 175 D.L.R. (4th) 169 (C.A.). [6] That being said, costs in a situation of a complete shutout are influenced by the presence of an offer. [7] The introductory subsections of Rule 57.01 talks about above and beyond the results and offers, the courts consider theexperience of counsel for the successful party and the hours dissipated. [8] Therefore the discretion that is referred to is to be exercised in a fair and principled manner.

Rule 57.01 continues to consider asfactors elements of bad litigation behaviour ie: the failure to admit that which should be admitted and behaviour that contributes to theprolongation of the matter or unnecessary expense. Obviously, one of the goals is to have litigation which is cost effective, not afunction of playing “hardball”.

Relevant History of this Matter and Position of the Parties [9] Counsel for the applicant suggests that as this litigation could have gone one way or the other, each side should bear their owncosts without contribution from the other side. [10] Counsel for the respondents notes that the plaintiff failed to admit that which they should have and that there were inaccuracies inthe plaintiffs’ affidavit material (ie: one of the assertions by Mr.

Opaca, to the effect he called the office of the respondents, suggestinghe had made actual verbal contact, that assertion became progressively more oblique under cross-examination). This led to furtherresponding material and a consequential prolongation of the process of this litigation. [11] The applicants’ did not answer all of their undertakings. [12] The maintenance of the plan for specific performance led to delays in the sale by the respondents to third parties.

That claim wasargued in the correspondence from the counsel for the respondents to be untenable, an assertion that appears to be accurate as the claimwas abandoned at the outset of the proceedings before this Court. [13] The respondents made written offers, the first being May 10, 2017, that the applicants pay $1000.00 in costs, was to say the least,so modest that no party would ever consider it. However, the second offer of June 20th, 2017 was quite generous. That offer proposedthe return of the applicants’ deposit and any monies paid out for upgrades in the residence.

That offer should have been seriouslyconsidered by the plaintiffs, especially so since there should have been some recognition of how tenuous the pursuit of specificperformance was. A recognition which would undermine the assertion of the claim for the ultimate sale price of the residence. Thatoffer represented a way for the applicants to realize a significant proportion of their losses. To soldier on, especially in a case whichlargely rested on credibility was unwise.

Analysis [14] Given all of the above, especially the patent unreasonableness of applicant’s approach, the usual rule that the successful partyrecovers their costs is applicable. [15] That being said, counsel for the applicants appropriately asked for the scrutiny of the proposed bill of costs. [16] The distinction between costs before and after the June 20th, 2017 offer is appropriate given the nature of the offer. [17] Counsel for the applicant appropriately questions in a disbursement items, the necessity for a process server.

Counsel also arguesthat the amount of work extended by counsel for the respondents was excessive. The latter point has some traction in that the Courtnotes that there may be possible overlap between, “preparation for cross-examination” and “preparation for motion materials”. Thisnotation is based on the fact that we have memories of that which we work upon and that recall can serve several purposes. CONCLUSION [18] For all of the above, costs payable by the applicants to the respondents is fixed at $27,500.00, inclusive of disbursements.

Thisamount is payable forthwith ie: within 60 days. ___________________________ Whitten J.

Released: September 8, 2017 CITATION : Dada v. Brantford Communities Ltd. et al, 2017 ONSC 5267 , 2017 ONSC COURT FILE NO.: 17/61385 DATE: 2017-09-08 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: OLAYINKA DADA and OLUWATOYIN DADA Applicants - and – BRANTFORD COMMUNITIES LTD. and EMPIRE PLEASANTVIEW COMMUNITIES LTD. Respondents COSTS JUDGMENT ACRW:jls Released: September 8, 2017