Court File and Parties
Court File No.: CV-20-00637344-0000 Date: 2022-02-25 Ontario Superior Court of Justice
Between: WILLIAM FEHR SR. and DOROTHEY FEHR, Plaintiffs
- and – PAUL GRIBILAS and PETER GRIBILAS, Defendants
- and – J+W FOODS INC., WILLIAM FEHR JR., STEVEN TROUGAKOS, Third Parties
Counsel: Christine G. Carter, for the Plaintiffs Michael R. Kestenberg, for the Defendant Paul Gribilas Norm Emblem, William Pepall and Spencer Jones, for the Defendant Peter Gribilas Jonathan Rosenstein, for the Third Party J+W Foods Inc.
Heard: In writing
Before: Perell, J.
Reasons for Decision - Costs
[1] This is a costs decision. The claimants for costs are two defendants and one of the third parties. The background to their claim for costs is as follows:
a. In the main action, the Plaintiffs, William Fehr Sr. and Dorothey Fehr, sued the Defendant Paul Gribilas, who was the lawyer for J+W Foods Inc.
b. In the main action, the Plaintiffs sued the Defendant Peter Gribilas, who was the accountant for J+W Foods Inc.
c. Paul Gribilas commenced third party proceedings against J+W Foods Inc., William Fehr Jr., and Steven Trougakos.
d. Peter Gribilas intended to commence similar third party proceedings.
e. Paul Gribilas and Peter Gribilas respectively submitted that if they are liable to William Fehr Sr. and Dorothey Fehr, then the fault lies with the third parties against whom they sought contribution and an indemnity.
f. In the main action in this case, Peter Gribilas and Paul Gribilas brought summary judgment motions seeking a stay or a dismissal of the main action.
g. In third party proceeding, there was a motion by one of the Third Parties for a stay or dismissal of the main action.
h. In alliance with the Gribilas’ summary judgment motion, one of the Third Parties, J+W Foods Inc., brought a stay motion. J+W Foods Inc. submitted that the main action should be stayed or dismissed because the Plaintiffs signed a release that contained a no-claim-over provision. J+W Foods Inc. - and the Defendants Gribilas - submitted that the release bars the main action.
i. I granted the three motions, and I permanently stayed the Plaintiffs’ action and the third party proceedings. [1]
[2] The Defendant Paul Gribilas seeks costs of $42,991.05, all inclusive on a substantial indemnity basis, and in the alternative, he requests costs of $31,970.83, all inclusive, on a partial indemnity basis.
[3] The Defendant Peter Gribilas seeks costs of $32,480.83, all inclusive, on a partial indemnity basis.
[4] The Third Party J+W Foods Inc. seeks full indemnity costs of $11,379.88, all inclusive. The basis for a full indemnity is that the release signed by the Plaintiffs provided that if J+W Foods Inc. were ever required to rely on the claims-over provision “the offending Releasors will be jointly and severally liable to the affected Releasee(s) for the legal costs incurred in any such proceedings on a full indemnity basis.”
[5] In their written costs submissions, the Plaintiffs did not dispute the quantum of the costs claims.
[6] Rather, the Plaintiffs submit that because the main action was stayed in circumstances where I had ruled that there were genuine issues for trial in the main action, it would be a miscarriage of justice to further penalize and impose a financial obligation on them in these circumstances where the defendants have already had action against them stayed. The Plaintiffs submit that there should be no order as to costs.
[7] There is no miscarriage of justice. The Plaintiffs brought an action that has been permanently stayed. The Plaintiffs were the unsuccessful party on a dispositive motion. The Gribilas Defendants were the successful party in a dispositive motion and there is no reason not to apply the normal rules that guide the court’s discretion to award costs. The case at bar is not one in which a punitive award is called for.
[8] Accordingly, I award the Defendant Paul Gribilas costs of $31,970.83, all inclusive, on a partial indemnity basis and the Defendant Peter Gribilas costs of $32,480.83, all inclusive, on a partial indemnity basis.
[9] Turning to the claim for costs of J+W Foods Inc., the Plaintiffs submit that in circumstances where they did not sue the third parties and where they consented to the third-parties’ original request for a stay of the third party proceedings, no costs of the third parties’ motion ought to be awarded against them.
[10] There is no merit to the Plaintiffs’ argument. The third parties brought a motion to stay the main action, which, practically speaking, put an end to the third party claim. The Plaintiffs unsuccessfully resisted J+W Foods Inc.’s motion, and the outcome was dispositive of the main action and the third party claim. J+W Foods Inc. was the successful party in a motion resisted by the Plaintiffs. The normal rules as to costs is that costs follow the outcome. I award J+W Foods Inc. costs of $11,379.88, all inclusive.
[11] Orders accordingly.
Perell, J. Released: February 25, 2022
