Court File and Parties
CITATION: Estate of Goldentuler v. Crosbie, 2015 ONSC 2057
DIVISIONAL COURT FILE NO.: DC 553
DATE: 20150402
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, KITELEY and WHITAKER JJ.
BETWEEN:
THE ESTATE OF HENRY GOLDENTULER
Plaintiff/Appellant
– and –
ROBERT CROSBIE, OLGA LEYENSON, MARK KOSKIE, GAIL YATTAVONG and KLC FIRM (CORPORATION)
Defendants/Respondents
Counsel:
Karl Girdhari, for the Plaintiff/Appellant
John J. Adair, for the Defendants/Respondents
HEARD: March 4, 2014 at Oshawa
Reasons for Judgment
MATLOW, J.
The background of this claim for costs
[1] This is an appeal by the plaintiff, pursuant to leave granted by Justice M.F. Brown, from the order of Justice Edwards dated February 7, 2012. By that order Justice Edwards (the "motion judge") set aside the order of Justice Ferguson dated January 8, 2008, by which, pursuant to rule 57.03(2), Justice Ferguson struck out the statement of defence and counterclaim of the defendants for their failure to pay costs previously ordered by other judges at various stages of this action.
[2] For written reasons released on November 12, 2014, the appeal was allowed and the order of Justice Edwards was set aside. The decision of Justice Ferguson was restored and the statement of defence and counterclaim of the defendants was struck.
The submissions of counsel
[3] Both counsel agreed in their respective written submissions that the successful plaintiff should be entitled to costs and that those costs should be fixed at $5,000 for the motion for leave to appeal and at $10,000 for this appeal. What remained in issue is only the quantum of the costs for the proceedings before Justice Edwards.
[4] Justice Edwards awarded costs, fixed on a partial indemnity basis at $20,000 for fees plus $6,984.89 for disbursements and H.S.T., a total of $26,984.89. If we were to award the same amount and the amounts agreed upon, above, the total award for costs to the plaintiff would be $41,984.89.
[5] Counsel for the defendants submits that this should be the award that we should make.
[6] Counsel for the plaintiff, on the other hand, submits that we should not consider ourselves bound by the quantum of the costs award made by Justice Edwards in favour of the defendants and that we should exercise our own discretion by making a greater award in favour of the plaintiff. In support of this submission, he stated that we should recognize that the plaintiff should now be viewed as the successful party in the proceeding before Justice Edwards in light of the outcome of this appeal and that we should fix the quantum of costs accordingly.
Our disposition of costs
[7] We are of the view that it would be unfair for us simply to adopt the same quantum as that awarded by Justice Edwards. Having regard to the time spent by counsel for the plaintiff, the responsibility undertaken by him and the result that should have been achieved by the plaintiff below, we are of the view that the quantum should be increased by approximately $9,000 to $35,000, all-inclusive, for the proceedings before Justice Edwards.
[8] Taken together with the other items for which the parties have agreed on an award to the plaintiff of $15,000, it follows that the plaintiff is entitled to costs, fixed at $50,000, all-inclusive. We are satisfied that this award is fair and reasonable and within the reasonable contemplation of the parties.
MATLOW J.
KITELEY J.
WHITAKER J.
Released: April 2, 2015
CITATION: Estate of Goldentuler v. Crosbie, 2015 ONSC 2057
DIVISIONAL COURT FILE NO.: DC 553
DATE: 20150402
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, KITELEY, WHITAKER JJ.
B E T W E E N :
THE ESTATE OF HENRY GOLDENTULER
Plaintiff/Appellant
– and –
ROBERT CROSBIE, OLGA LEYENSON, MARK KOSKIE, GAIL YATTAVONG and KLC FIRM (CORPORATION)
Defendants/Respondents
REASONS FOR JUDGMENT
MATLOW, J.
RELEASED: April 2, 2015