Endorsement

Court File No.: 10-23687SR
Date: 2012-03-28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jaskot Family Law Barristers Professional Corporation

AND: Jared MacDonald and Beatrice MacDonald

BEFORE: Mr Justice Ramsay

COUNSEL:
Mr Richard A. Wellenreiter for the plaintiff, responding

Mr Nelson A. McKay QC for the defendants, moving parties

ENDORSEMENT

[ 1 ] The defendants moved successfully for summary judgment ( 2012 ONSC 1529 ). They now ask in writing for costs.

[ 2 ] Prima facie the defendants should expect costs of the action at least on a partial indemnity basis. They are asking for full indemnity fixed at $33,000 on the basis of the plaintiffs’ conduct and because of an offer to settle that the plaintiffs refused.

[ 3 ] I do not think that the plaintiffs’ conduct is worthy of sanction. I thought that the action was without merit and that the evidence in support of it was not credible, but that is what summary judgment is for.

[ 4 ] The offer to settle was not an offer within the meaning of Rule 49. Moreover I do not think that it was a genuine attempt to resolve the litigation. The defendant offered to settle for $10 and no costs. It turns out that the plaintiffs would have been better off if they had accepted this contemptuous offer, but I do not think that the contrary decision should attract augmented costs in the circumstances.

[ 5 ] The plaintiffs argue that the costs requested are excessive. The plaintiff’s lawyers charged their own clients $17,000. Costs of the action essentially comprise the costs associated with pleading and examination for discovery, as well as preparing the motion for summary judgment and arguing it. The bill submitted by the defendants strikes me as disproportionate to the amount claimed, which was $84,000. I think that for the sort of motion that was brought, in addition to the other costs of the action to that point, the parties might reasonably have expected to pay actual costs of $15,000. I award 60% of that, which is $9,000.

[ 6 ] The plaintiffs are ordered to pay the defendants’ costs, which I fix at $9,000.

J.A. Ramsay J.

Date: 2012-03-28