



COURT OF APPEAL FOR
    ONTARIO

CITATION: Boily v. Carleton Condominium Corporation 145, 2014
    ONCA 735

DATE: 20141023

DOCKET: C56885

Epstein, Lauwers and Pardu JJ.A.

BETWEEN

Danielle Boily,
Juan Escudero
, Lisa Backa-Demers, Kanta Marwah,

Doug Cummings and
    Richard Maurel

Applicant (
Respondent
)

and

Carleton Condominium
    Corporation 145, Dan Litchinsky, Avis Miller,

Jean-Guy Bourgeois
    and Carol Smale

Respondents (Appellants)

Janice B. Payne, for the appellants Dan Litchinsky, Avis
    Miller, Jean-Guy Bourgeois and Carol Smale

Antoni Casalinuovo and Patricia Elia, for the appellant,
    Carleton Condominium Corporation 145

Rodrigue Escayola and Jocelyn Duquette, for the respondent, Juan
    Escudero

Heard: December 9, 2013

On appeal from the judgment of Justice Robert N. Beaudoin of
    the Superior Court of Justice, dated March 8, 2013, with reasons at 2013 ONSC
    1467 and 2013 ONSC 2352.

COSTS
    ENDORSEMENT

[1]

The respondents are owners of condominium units in the appellant
    condominium complex.
[1]
The Individual Appellants were, at the material time, its board of directors. The
    respondents challenged the appellants decision, following extensive repairs to
    the garage beneath the complex, to install landscaping that differed from the
    previous landscaping.    In his endorsement of June 29, 2011, Beaudoin J.
    ordered the appellants to restore the landscaping to its previous design.

[2]

In defiance of the order, the Individual Appellants authorized the
    installation of landscaping containing some elements of the previous design and
    some elements of their preferred design.  As a result, Beaudoin J. in his March
    8, 2013, judgment, found the appellants in contempt of court.  In sanctioning
    the contempt, the motion judge again ordered that the exterior of the complex be
    restored to the previous design.  He also ordered the Individual Appellants to
    personally bear the expense of restoration - estimated to be approximately
    $400,000.

[3]

In separate reasons, the motion judge ordered the Individual Appellants
    to pay the respondents costs of the motion, which he assessed on a substantial
    indemnity basis, that, together with disbursements, amounted to $109,598.

[4]

In reasons released August 6, 2014, this court allowed the appeal, in
    part. The appeal of the finding of contempt was dismissed.  The sanction,
    however, was varied.  While Beaudoin J.s order that the appellants restore the
    landscaping to the original design remained in place, this court set aside the
    order that the restoration be paid for by the Individual Appellants.  Instead,
    the Individual Appellants were each ordered to pay a $7500 fine to Carleton
    Condominium Corporation 145 (CCC 145).

[5]

In the light of the divided success, no costs were ordered on appeal. 
    The parties were invited to make submissions as to the costs of the underlying
    contempt motion.

[6]

In their written submissions, the parties take the following positions.

[7]

CCC 145 submits that the motion judges costs award should not be
    disturbed.  Alternatively, CCC 145 contends that responsibility for the award
    should be shared equally amongst the appellants, such that CCC 145 would pay
    one fifth of the amount, roughly $20,000.

[8]

The Individual Appellants argue that the amount of costs the motion
    judge awarded should be reduced.  Specifically, they submit that an award on a
    substantial indemnity basis is not warranted.  They agree that the
    responsibility to pay the costs award should be shared equally with CCC 145.

[9]

The respondents contend that the motion judges costs award should not be
    disturbed.  If any change is made to the motion judges costs award, it should only
    be to reallocate the responsibility for payment among the five appellants.

[10]

The
    sole issue before the court is the motion judges costs award.  No party has
    formally asked this court to reconsider its decision not to award costs of the
    appeal.

[11]

I
    agree with the Individual Appellants that there is reason to reconsider the
    motion judges decision to award costs on a substantial indemnity basis.  I
    appreciate that these were costs flowing from a successful motion for contempt
    of court - a finding, upheld on appeal, grounded on conduct that, at the very
    least, shows disrespect for the court.  However, as LaForme J. explained in
Einstoss
    v. Starkman
, 2003 CarswellOnt 100 (C.A.), at paras. 10-14, affd 2003
    CarswellOnt 3234 (C.A.), at para. 3,  a finding of contempt does not, on its
    own, justify an award of costs on an elevated scale.  The nature of the contemptuous
    conduct is a relevant consideration:
SNC-Lavalin Profac Inc. v. Sankar
, 2009
    ONCA 97, 94 O.R. (3d) 236, at para. 19.

[12]

Elevated
    costs are warranted in only two circumstances:
Davies v. Clarington
    (Municipality)
, 2009 ONCA 722, 100 O.R. (3d) 66. The first involves the
    operation of an offer to settle under rule 49.10 of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194, where substantial indemnity costs are
    explicitly authorized. The second is where the losing party has engaged in
    behaviour worthy of sanction.

[13]

In
    deciding upon a punitive award of costs, the motion judge relied on the conduct
    of the Individual Appellants.  He referred to the following findings in the
    contempt motion, at para. 34 of his costs reasons:

I will not reiterate the findings ... other than to note that I
    found that 
[T]he [appellants] breached the order wilfully and
    deliberately;
 and that 
[T]he [appellants] acted neither honestly and
    in good faith, nor as a reasonably prudent person [] The [appellants] adopted
    a narrow and self-serving interpretation of my order and chose to reinstate
    elements that they preferred, despite the decision of this court
.
    [Emphasis in original.]

[14]

On
    appeal, the contemptuous conduct was summarized by the majority, at paras.
    100-101:

After having obtained and accepted a recommendation by experts
    as to the optimal landscaping design, the Individual Appellants simply could
    not accept being put in a position in which they had to implement a design they
    believed was not optimal for the condominium owners.  They therefore took
    matters into their own hands and, albeit for reasons they considered valid,
    defied a court order. The Individual Appellants arrogance led them to reckless
    and ultimately unlawful conduct.

Any contempt is serious.  This is no exception.  However, in my
    view, the Individual Appellants contemptuous conduct must be considered in the
    light of the fact that there is no evidence that it was motivated by personal
    gain, vengeance or any reason other than that they felt they knew best.

[15]

In
    my view neither any offer to settle nor the Individual Appellants' conduct, as
    characterized by this court, justifies an award of costs on a substantial
    indemnity basis. I would award partial indemnity costs.

[16]

In
    the often-cited case of
Boucher v. Public Accountants Council (Ontario)
(2004),
    71 O.R. (3d) 291 (C.A.), this court set out the principles to apply in fixing
    costs.  The objective is to fix costs that are fair and reasonable having
    regard to the expectation of the parties.

[17]

Applying
    the principles in
Boucher
,
I am of the view that a costs award of $35,000 fairly and reasonably responds
    to the expectations of the parties.  It is apparent from the history that the
    issues in this matter were serious and, in certain respects, the stakes were
    high.  However, this was a one-day motion for contempt that involved applying
    well-established law to clear facts.

[18]

I
    would therefore set aside the motion judges costs award and award costs in
    favour of the respondents fixed in the amount of $35,000 inclusive of
    disbursements and applicable taxes.

[19]

In
    the circumstances, I see no reason to differentiate among the appellants. 
    While the Individual Appellants made the decisions that gave rise to the
    contempt finding, they were elected by the unit owners at CCC 145.  CCC 145 is
    an independent entity that was separately represented in these proceedings.  I
    would order each appellant responsible, on a joint and several basis, for one
    fifth of the award.

Gloria Epstein
    J.A.

P. Lauwers
    J.A.

G. Pardu J.A.





[1]
The respondent Juan Escudero is the sole remaining member of the group of
    owners who opposed the boards decisions.  I will refer to the respondent in
    the plural, (the respondents) in order to be consistent with the history of
    this proceeding.


