Superior Court of Justice – Ontario

Court File No.: CV-09-2934 SR
Date: 20120404

Re: Duane Napier v. Maurizio Vani

Before: Fragomeni J.

Counsel:
Jason Bogle, for the Plaintiff
Tim Gleason and Adam Pantel, for the defendant

E N D O R S E M E N T re C O S T S

[ 1 ] The motion before me was brought by the defendant to enforce a settlement of the action that was reached between counsel for the defendant and counsel for the plaintiff. The terms of settlement were simple, namely, the action would be dismissed without costs.

[ 2 ] The defendant was successful at the motion. I agree with the defendant’s position that this motion was entirely unnecessary. The plaintiff did not file an Affidavit sworn by him to explain any of the circumstances that led to the offer made by his lawyer, which offer was accepted by the defendant. The plaintiff did not deliver any direct affidavit evidence in response to the defendant’s motion suggesting that the offer to settle was made by his lawyer without his instructions or made by mistake.

[ 3 ] I am satisfied that the defendant is entitled to costs. The defendant seeks costs in the total amount of $4,917.86 all inclusive. I am also satisfied that costs should be awarded on a partial indemnity scale. Although the plaintiff was not successful at the motion, I cannot conclude that the circumstances surrounding this motion rise to the level that warrants costs to be fixed on a substantial indemnity basis.

[ 4 ] The partial indemnity fees are $2,186.55. Disbursements are $629.41.

[ 5 ] I am prepared to fix costs of the motion at $2,700 all inclusive.

[ 6 ] Order to issue that the plaintiff pay to the defendant partial indemnity costs fixed in the all-inclusive sum of $2,700, payable forthwith.

Fragomeni J.

DATE: April 4, 2012