Court File and Parties

COURT FILE NO.: 09-CV-386810-0000
DATE: 20120411
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: WAJID KUDWAH

Plaintiff

AND:

CENTENNIAL APARTMENTS, PRINCESS MANAGEMENT
PARTNERSHIP and MICHAEL EDWARD HALPERIN

Defendant

BEFORE: Mr. Justice Lederer

COUNSEL:
P. Michael Rotondo, for the Plaintiff (responding party)

Chad Leddy, for the Defendants, Centennial Apartments and Princess
Management Partnership (moving party)

COSTS ENDORSEMENT

[ 1 ] This was a motion for summary judgment. It was brought by the defendant. The defendant was successful. The action was dismissed. It was determined that the applicable limitation period had expired.

[ 2 ] The defendant seeks costs on a partial indemnity scale for both the motion and the action. The defendant asks for $15,406.74 in fees and "related taxes" and $2,859.50 in disbursements and taxes, for a total of $18,266.32.

[ 3 ] The plaintiff does not object to the costs claimed in respect of the motion. Counsel for the plaintiff does object to any award being made with respect to the action as a whole. In his view, this is foreclosed by Rule 20.06 of the Rules of Civil Procedure. The rule provides direction as to the awarding of costs on a motion for summary judgment. It does not foreclose the award of costs where the motion is successful and the action dismissed. To my mind, it would be unfortunate if it did so. It would require a separate and further motion for costs of the action. This should not be necessary.

[ 4 ] Counsel for the plaintiff objected to the charge of $2,293, the charge of $408.25 and the charge of $985.70 on account of examinations-for-discovery and the attendant disbursements for the special examiner and transcripts. In his view, given that the plaintiffs were already aware of the problems concerning the limitation period, there was no need to proceed to discovery. I do not agree. It is always possible that there will be an issue as to when the claim was "discovered", as that term is understood by the Limitations Act, 2002 S.O. 2002, Chapter 24, Schedule B s. 5.

[ 5 ] Counsel for the plaintiff objected to the charge, within the Bill of Costs, for Preparation for Trial: $3,368. Why would there be such charge where a motion for summary judgment was to be brought and was successful? Counsel for the plaintiff points out that the matter had not been set down for trial and, accordingly, there was no need for this work to be done and no award of costs in this regard should be made. The Bill of Costs suggests that this time was spent reviewing transcripts and, generally, dealing with the aftermath of examinations-for-discovery, including the preparation of the lists of undertakings, request for answers and reviewing the answers and documents provided. This is what is supposed to happen when discoveries have been completed. I would not fault the defendant for proceeding in this way. It may be that these costs could have been avoided if the defendants had moved directly to the motion for summary judgment, but to deny them costs would impose a precision on the conduct of actions which would be difficult to comply with.

[ 6 ] The fact remains that, in this case, the action was out-of-time and, on that basis, should not have been commenced. I do not, in any sense, question the good faith of the plaintiff in launching the action or defending the motion but, in the end, this does not detract from his responsibilities to pay costs where the action is dismissed. In the circumstances, I find that the costs requested by the plaintiff are reasonable and in line with what the defendant should reasonably expect to pay.

[ 7 ] I award costs in the amount of $18,266.32, inclusive of fees, the disbursements and taxes.

LEDERER J.

DATE: 20120411