COURT FILE AND PARTIES

COURT FILE NO.: CV-10-408744
DATE: 20120522
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: RHONDA KASTNER
Plaintiff

AND:

MILTON DAVIS
Defendant

BEFORE: Mr. Justice Lederer

COUNSEL:
Daniel F. Chitiz & Tamara Ramsey , for the Plaintiff
Michael R. Kestenberg , for the Defendant/Moving Party

COSTS ENDORSEMENT

[ 1 ] This was a motion for summary judgment that was brought on behalf of the defendant. It was dismissed. Counsel for the plaintiff seeks costs on a full indemnity scale of $98,589.46 and, in the alternative, on a partial indemnity scale of $76,151.06. Counsel for the plaintiff says that costs on the higher scale are appropriate because the plaintiff was successful in opposing the motion in its entirety. As counsel sees it, the motion should never have been brought. It was obvious that the nature of the relationship between the parties is at the root of the dispute and that the evidence which explains it could never be fully appreciated without a trial. A judge would have to hear the parties testify.

[ 2 ] The relationship and the events which gave rise to this action took place between 1999 and 2002. In the normal course, this action would have been out of time. As it is, the action is based on the allegation that the defendant owed a fiduciary duty to the plaintiff. At the time, there was no limitation period which attached to such claim. This would not be the case if the same events took place today. In his submissions, counsel for the plaintiff made reference to Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 , CarwellOnt 13515, at paras. 67 and 68, where the following appears: “…as the jurisprudence becomes more settled on when it is appropriate to move for summary judgment, the reasonableness of the decision to move for summary judgment or to resist such a motion will be more closely scrutinized by the court in imposing cost orders under rule 20.06”. This will undoubtedly come to pass, but we have not fully travelled down that path yet. It is less than a year and a half since the rule was amended and less than six months since the decision in Combined Air Mechanical was released . In the circumstances, I am not prepared to fault counsel for attempting to find an expeditious answer to this proceeding. I will not award costs at the elevated scale that has been requested.

[ 3 ] Counsel for the defendant says that, even so, the costs are too high. He submitted that the hours spent and the rates charged exceed what is reasonable in the circumstances. The rates, at least at the time that the motion began, do not seem out-of-line given the experience of the lawyers involved. Having said this, the rates appear to have changed over the course of the motion. By the time the motion was argued, senior counsel, who appeared on the motion, was charging $48.75 per hour more than when the motion record of the plaintiff was being reviewed.

[ 4 ] Given the cross-examinations and the nature of the issues, many of which were based in the particular history of the relationship between the parties, I am not prepared to find that the time spent was beyond what is reasonable. Having said this, I would observe that, as submissions were made, it became clear that the substantive claims being made by the plaintiff were more limited than was apparent from the record and the facta.

[ 5 ] Finally, in addressing what his client could reasonably be expected to pay (see: Rule 57.01(1)(0.b) of the Rules of Civil Procedure) , counsel for the plaintiff provided a Costs Outline indicating that his costs, on a partial indemnity scale, were $46,327.84. However, it seems that, relying on his experience as a lawyer, the defendant prepared his own affidavit which served to reduce his costs. This may accrue to the benefit of the defendant in his relations with his own counsel, but cannot extend to limit the costs he should expect to pay to the plaintiff. To the contrary, he should expect those costs to be higher because the plaintiff is not a lawyer and will have to seek the assistance of counsel when the drafting of documents is required. It does seem to me that $76,151.06 is more than the defendant could reasonably have expected to pay.

[ 6 ] In the result, I award the plaintiff costs in the amount of $65,000 for fees and disbursements, excluding any tax that may be due.

LEDERER J.

Date: 20120522