Court File No.: 148/04

Date: 20050421

SUPERIOR COURT OF JUSTICE (DIVISIONAL COURT)

BETWEEN:

JOEL WAITE

Respondent (Plaintiff)

• and -

LORNE GERSHUNY

Appellant (Defendant)

HEARD: February 11, 2005; Submissions as to costs March 15, 21, 2005.

BEFORE: Lane, Jarvis and Swinton JJ.

COUNSEL: E. Eva Frank, for the Appellant;

Yan David Payne, for the Respondent.

ENDORSEMENT AS TO COSTS

[1] On February 22, 2005, we released reasons allowing this appeal and dismissing the action. The appeal was from an order restoring the action to the trial list notwithstanding a five-year delay in moving for this relief after the plaintiff failed to appear for trial. The plaintiff had obtained an ex parte order restoring the case a few weeks after he failed to appear. That order was set aside and he was given leave to move upon notice which he did some five years later without any explanation of why he did not appear nor any statement of the merits of the case. The motion judge permitted the case to be re-opened without inquiring into the facts behind the failure to appear nor as to the merits, but, as noted, we allowed the appeal and dismissed the action.

[2] The appellant seeks partial indemnity costs in the amount of just under $9500 made up of $3465 in fees for the motion for leave to appeal, $4334 in fees for the appeal and $1060 in disbursements, plus GST. The appellant also observes that, as a result of the dismissal of the action, the respondent already owes the $7500 awarded by the trial judge as costs of the action in 1998 and the costs thrown away ordered on the motion to restore the case in 1999. The appellant submits that the costs should follow the event as in the ordinary course.

[3] The respondent submits that no costs of the motion for leave or of the appeal should be awarded. The evidence shows, counsel submits, that two and a half years of the delay was attributable to the respondent’s former solicitor, who eventually went bankrupt in 2002; that the respondent unsuccessfully pursued the recovery of $10,000 in fees paid for no work actually done; and could not afford to move the process along. We dealt with this submission in our reasons on the appeal:

He put the blame on his lawyer and it is true that there was evidence that the lawyer had personal troubles and went bankrupt in August, 2002. This could explain the delay in part, but it is not an explanation for five years of delay in bringing a straightforward motion. As the party whose interests were at stake, he cannot entirely escape from responsibility for the delay by simply saying it was in the hands of his lawyer. He also pleaded impecuniosity, but he admitted he was steadily employed during the period at a salary of between $48,000 and $53,000 annually, not a fortune but, without dependents at home, surely sufficient to provide a retainer for such a motion.

[4] The respondent further submitted that allowing costs against him would bring the administration of justice into disrepute because the respondent will not now have his case heard on the merits and it would be unfair to make a costs order as well. However, as we pointed out in our earlier reasons rejecting this same submission, the respondent could have put in some evidence beyond bald allegations and damages claims in large but entirely unsupported amounts, (which he agreed at one point to settle for $10,000), if he seriously considered that he had a meritorious case.

[5] Therefore, we do not accept the submission that a costs award is inappropriate in this case. As to the amount, the appellant submitted a bill of costs, as noted above. The individual parts are all reasonable, although there is likely some duplication in the preparation of the materials for motion and appeal. However, it is necessary to ask the question: At the end of the day, what is the total for fees and disbursements that would be a fair and reasonable amount to be paid by the unsuccessful parties in the particular circumstances of this case?[^1] The award does not necessarily equal the sum of the parts; an overall sense of what is reasonable should be factored in to determine the ultimate award.

[6] In the present case, there is some doubt as to what was really at stake. The respondent asserted a claim exceeding $300,000, but settled at one point for $10,000, which he says was due to bad advice from a former lawyer. The delay was also blamed, as to one-half, on the former lawyer, but parties must accept some degree of responsibility for such extreme delay, and there is the other half of the delay. We have also considered whether the range of costs claimed is out of line with the reasonable expectations of parties to a proceeding such as this one.

[7] In our view a fair and reasonable award for the costs of the motion for leave and of the appeal is $7500 all-in.

Lane J.

Jarvis J.

Swinton J.

DATE: April 2005

[^1]: See Murano v. Bank of Montreal (1998) 1998 5633 (ON CA), 41 O.R. (3rd) 222, at page 247; and Zesta Engineering Ltd. v. Cloutier, Ont. C.A. Nov. 27, 2002.