Court File and Parties

CITATION: Palac v. Coppola, 2011 ONSC 1453

COURT FILE NO.: DC-10-00000187-0000

DATE: 20110307

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: agnEs palac, Plaintiff/Appellant

AND:

ANTONIO COPPOLA, Defendant/Respondent

BEFORE: McDERMOT, J.

COUNSEL: B. Nagra, Counsel, for the Plaintiff/Appellant

S. Timokhov, Counsel, for the Defendant/Respondent

HEARD: by written submissions

ENDORSEMENT

[1] I issued a decision in this matter dismissing the appeal of the Plaintiff in this matter, Ms. Palac. The Defendant now requests costs.

[2] The Defendant has filed a Bill of Costs and claims full indemnity costs. The costs claimed are $4,203.60 for the appeal which are full indemnity costs.

[3] The Appellant does not deny that costs are payable, but states that costs should be payable on a partial indemnity basis only.

[4] No offers to settle were served by either party.

[5] The relevant factors that I may consider under Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194 are the following:

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(c) the complexity of the proceeding;

[6] Hunt v. TD Securities Inc. (2003), 2003 3649 (ON CA), 66 O.R. (3d) 481 (C.A.) stands for the proposition that, absent “rare and exceptional” circumstances a party is only entitled to party and party (or partial indemnity) costs of a proceeding. This would include cases where there were proven allegations of “fraud, deceit or conspiracy” or where the action was “improperly defended”: see para. 126 of the report.

[7] I agree that in the normal course, the costs claimed appear to be reasonable in view of the issues considered, the amount at issue and the costs of preparing and arguing a Small Claims Court appeal. There is no issue taken to the time spent by Mr. Timokhov or his hourly rate.

[8] I also agree with Mr. Timokhov that the issues were complex.

[9] However, based upon Hunt v. TD Securities Inc., supra, as well the submissions by the solicitor for the Plaintiff, I agree that partial indemnity costs only are claimable in this matter. There is no reason why costs should be based on a substantial or full indemnity basis.

[10] Accordingly, I am ordering that the Plaintiff shall pay the Defendant’s costs on a partial indemnity basis in the amount of $3,000.00, inclusive of HST and disbursements. That amount will be set off as against the judgment owing to the Plaintiff of $1,875.68; the net amount owing for costs accordingly is $1,124.32.

McDERMOT, J.

Date: March 7, 2011