Superior Court of Justice - Ontario

COURT FILE NO.: CV-09-1690-00
DATE: 20120323

RE: Automax, Plaintiff. Defendant by Counterclaim

AND:

General Motors Acceptance Corporation of Canada Limited (“GMAC”), Defendant, Plaintiff by Counterclaim

BEFORE: THE HON. MADAM JUSTICE M.P. EBERHARD

COUNSEL:
E. Bisceglia & A. Di Biase, Counsel for the Plaintiff, Defendant by Counterclaim

E. Hyer & K. Dawson, Counsel for the Defendant, Plaintiff by Counterclaim

HEARD: February 28, 2012, written costs submissions

COSTS ENDORSEMENT

[ 1 ] The Plaintiff brought a Motion returnable October 18, 2012. It was several times adjourned on consent and came before me February 28, 2012 with a Cross-motion.

[ 2 ] After argument of the Motion, the Cross-motion settled and the resolution was endorsed on that record.

[ 3 ] I invited costs submissions as follows:

The reasons disclose mixed success on the motion and cross-motion. If the parties wish to address costs they shall exchange written costs submissions of no more than 2 pages, together with bills of costs, by March 15 2012 and deliver them with any reply, of no more than 1 page, to the judicial secretary in Barrie by March 22, 2012.

[ 4 ] The Plaintiff was unable to contain his submissions to the permitted length.

[ 5 ] I predicted my response to submissions by the wording of the invitation.

[ 6 ] The Plaintiff seeks partial indemnity costs of $11,007.80. The Defendant seeks $8,799.80 but would be content with $3,000 as proportionate and fair or alternatively that the court make no order as to costs.

[ 7 ] The mixed success to which I referred was the moderation of what was ordered as compared to what was claimed based on my determination of what was really required and useful. Such moderation is best achieved by counsel dispassionately assessing and compromising where appropriate. Those qualities of advocacy emerged before me but it took the motion to trigger them.

[ 8 ] The Plaintiff had to bring a motion.

[ 9 ] I fix costs at $5,000 all in payable to the Plaintiff.

EBERHARD J.

Date: March 23, 2012