Casasola v. Brainch, 2012 ONSC 373

CITATION: Casasola v. Brainch, 2012 ONSC 373

COURT FILE NO.: 02/7013

DATE: 2012-01-17

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Andrea Casasola v. Jasdip Brainch and Iqbal Singm

BEFORE: The Honourable Madam Justice J.A. Milanetti

COUNSEL: Mr. Lou Ferro, for the Plaintiff

Ms. Franceen Rogovein, for the Defendants

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

1The defendant seeks its costs of this action on a substantial indemnity basis as:

A. They were successful in achieving a dismissal of the action at the opening of trial;

B. They made several attempts to settle the action via three offers to settle.¹ The last of the three offers was a valid unexpired Rule 49 offer of $5,000 dated January 29th, 2010;

C. This matter was called to trial February 8th, 2010 at which point the defendant moved to dismiss. I granted this order on February 9th, 2010.

D. On July 9th, 2009, Mr. Ferro announced that he was abandoning his client’s claim for pain and suffering and would proceed with a claim for loss of interdependent relationship. No further details were provided. Mr. Ferro would not agree to further discoveries despite the change in the nature of the claim. A motion was brought and an order obtained pending further examinations;

E. A second pretrial occurred on January 27, 2010 before Justice Harris. At that time Mr. Ferro indicated that he was seeking damages for “loss of the economic value” of the marriage. He indicated this was not a special damage nor that the plaintiff should be compensated for the loss of his former spouse’s housekeeping services. He also introduced a report from Rich Rotstein, not previously served, and indicated an intention to have its author appear as an expert.

2I invited each of the parties to file submissions as to costs; only the defendant took me up on such offer. As such and despite all of this time and several calls from my office, I am left to consider only the uncontested information provided by the defendants.

3It is clear that the defendant is entitled to its substantial indemnity costs from the date of their final, January 2010, offer forward.

4I do not have their dockets so do not know how much of the trial preparation occurred after that date but the Bill of Costs is divided into A) Action, and B) Trial Preparation. The trial total for the trial preparation is $21,905.

5In the absence of any responding material from the plaintiff, I will award the defendant the costs sought in connection with the Trial Preparation.

6Although I had no argument from the plaintiff, I would, in my gatekeeper role, reduce the disbursements to eliminate mileage and courier fees/charges. ($33.41 and $56.66 respectively.)

7The defendant further asks that I exercise my discretion and award substantial indemnity costs for the entire action. In support of this request, they reference their efforts to settle throughout, and the constantly changing positions of plaintiff’s counsel.

8While I recognize both that the defendant made several good faith efforts to resolve the matter throughout, and that they were faced with several varied approaches to the claim by plaintiff’s counsel, I will not exercise my discretion to award costs of the action prior to the January offer on a substantial indemnity basis. I have not been convinced that the conduct of the plaintiff was so improper or vexatious that such an award is justified.

9It is clear the costs of the action should be awarded to the defendant on a partial indemnity basis. I would thus award two-thirds of the $19,675.16 sought or $13.116.77. I might have further reduced the hours that went into the preparation of the action for duplication, but given the absence of any responding material from the plaintiffs, I will not do so.

10At the end of the day the defendants shall have their costs in the amount of:

(a) costs of the action $13,116.77

(b) trial preparation $21,905.00

(c) trial attendance $2,500.00

(d) preparation of Bill of Costs $264.50

(e) disbursements $1,511.84

Total: $39,298.11

GST on each of the fees and disbursements shall be over and above.

Footnotes

1. 1One made November 28, 2008 for $10,000 all inclusive after pre-trial; the second made June 22nd, 2009 for $25,000 all inclusive which expired in two days.