SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 08-CV-359839
MOTION HEARD: February 24, 2012

RE: Louie Vogrin, in the name and on behalf of 744142 Ontario Ltd. and Louie Vogrin v. Donald Ticknor (Deceased), The Estate of Donald Ticknor, Willo D. Ticknor, Graydon Wildman & Eva Wildman and Edward F. Symons

BEFORE: MASTER R.A. MUIR

COUNSEL: Claudio Martini for the plaintiffs Sonja Hodis for the defendants Graydon Wildman and Eva Wildman

James H. Bennett for the defendant Edward F. Symons

ENDORSEMENT - COSTS

[ 1 ] This costs endorsement is in respect of a motion brought by the plaintiffs pursuant to Rule 37.14 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 (the “Rules”) for an order setting aside the order of the registrar dated January 12, 2011 dismissing this action for delay. In my reasons for decision dated March 12, 2012, I dismissed the plaintiffs’ motion. In those reasons for decision I also requested that the parties provide the court with written costs submissions. I have now received and reviewed those submissions.

[ 2 ] I note at the outset that the defendants seek to have me fix the costs of this motion and of the action as a whole. The plaintiffs object to any order fixing the costs of the action. Given this objection, I am not prepared to fix the costs of the action. The order of the registrar dated January 12, 2011 provides that the plaintiffs shall pay the defendants’ costs of the action. The defendants are, of course, free to have those costs assessed.

[ 3 ] The defendant Edward F. Symons (“Symons”) seeks his costs of the motion on a partial indemnity basis is the amount of $7,968.82, inclusive of HST and disbursements. The defendants Graydon Wildman and Eva Wildman (the “Wildmans”) seek their cost on a partial indemnity basis up to July 27, 2011 and on a substantial indemnity basis thereafter. The total amount of costs they are seeking for the motion is $15,868.58, inclusive of HST and disbursements. The Wildmans’ justification for substantial indemnity costs is based on an offer to settle served July 27, 2011. The offer to settle provided that the Wildmans would consent to an order dismissing the motion without costs and would not seek payment of the costs awarded by the registrar in her order of January 12, 2011. Symons served a similar offer to settle but does not appear to be seeking costs on an elevated scale.

[ 4 ] The plaintiffs concede that costs should be paid to the defendants but they suggest that the amounts of $5,000.00 for Symons and $3,000.00 for the Wildmans are fair and reasonable in the circumstances of this motion.

[ 5 ] The court’s general authority to award costs as between parties to litigation is found in section 131(1) of the Courts of Justice Act , R.S.O. 1990, c. C.43, which provides that costs are in the discretion of the court. Rule 57.01(1) sets out a non-exhaustive list of factors the court is to consider when awarding costs. Rule 57.03(1) deals with the costs of interlocutory motions and provides that as a general rule the court should fix the costs of a motion and order that they be paid within 30 days. Rule 1.04(1.1) is also applicable. It requires the court, when applying the Rules , to make orders that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding. In general terms, the overall objective for the court is to fix an amount that is fair and reasonable for the unsuccessful party who generally must pay the costs of the successful party. See Zesta Engineering Ltd. v. Cloutier , 2002 25577 (ON CA) , [2002] O.J. No. 4495 (C.A.) at paragraph 4 . In Clarington (Municipality) v. Blue Circle Canada Inc. , 2009 ONCA 722 the Court of Appeal stated as follows at paragraph 52:

Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.

[ 6 ] These are the factors and principles I have considered in determining the appropriate costs order in the circumstances of this motion.

[ 7 ] This was a motion of moderate complexity. It was necessary for the parties to put forward evidence covering a significant number of years. It was also necessary for the Wildmans to tender medical evidence with respect to the issue of prejudice. I also agree with the defendants that this motion was of significant importance to them. If they had not been successful on this motion, they would have had to face ongoing litigation with the plaintiffs. By succeeding on this motion, the defendants have brought this action to an end. I also note that all counsel on this motion had to travel from outside of Toronto.

[ 8 ] With these factors in mind, I have reviewed and considered the costs outlines submitted by Symons and the Wildmans. In my view, the costs outline submitted by Symons is generally fair and reasonable in the circumstances of this motion. Symons’ lawyers devoted approximately 30 hours of time to this motion, which included the preparation of responding material (responding motion record and factum), travel to Barrie for cross-examinations and travel to Toronto for the hearing of this motion on February 24, 2012.

[ 9 ] However, I am not of the same view with respect to the costs outline submitted on behalf of the Wildmans. Their costs outline indicates that 55 hours of time was devoted to this motion. I can see no basis for this much of a discrepancy between Symons and the Wildmans. The material filed by the Wildmans was similar to that filed by Symons. I accept that the Wildmans did have to include certain medical evidence that Symons did not have to put forward. However, I also note that the cross-examinations took place in Barrie where Ms. Hodis’ office is located. In my view, the amounts sought by the Wildmans are excessive in the circumstances.

[ 10 ] I do agree, however, that the offer to settle should be taken into account. The offer did represent a compromise insofar as the Wildmans agreed to waive the costs of the action awarded to them by the registrar.

[ 11 ] Having considered all of these factors, it is my view that both Symons and the Wildmans should receive the same costs award for this motion. I therefore find that it is fair and reasonable, in the circumstances of this motion, that the plaintiffs pay the defendants’ costs of this motion, fixed in the amount of $7,000.00 to Symons and $7,000.00 to the Wildmans, inclusive of HST and disbursements.

Master R.A. Muir

DATE: March 28, 2012