ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 1633/04
DATE: 2012-09-13

B E T W E E N:

Jan Kelly Spendiff and Rodney James Spendiff

Taylor B. Robertson, for the Plaintiffs

Plaintiffs

• and -

Janet Frances Schmiedl, Keith Sinclair Schmiedl and Philip J. McInerney carrying on business as Castlerock Professional Home Inspections

J. Ross Macfarlane, for the Defendants Janet Frances Schmiedl and Keith Sinclair Schmiedl Jay A. Stolberg, for the Defendant Philip J. McInerney carrying on business as Castlerock Professional Home Inspections

Defendants

The Honourable Justice J. R. Henderson

COSTS ENDORSEMENT

[ 1 ] By way of my written decision dated August 13, 2012, after a status hearing, I dismissed the plaintiffs’ claim against the defendants Janet Frances Schmiedl and Keith Sinclair Schmiedl (hereinafter called “the Schmiedls”) and against the defendant Philip J. McInerney carrying on business as Castlerock Professional Home Inspections (hereinafter called “McInerney”).

[ 2 ] As the successful parties, the Schmiedls and McInerney are entitled to their costs of this action. There were no offers to settle that would significantly affect the scale of the costs awarded. Therefore, the Schmiedls and McInerney should be awarded their costs on a partial indemnity basis.

[ 3 ] Regarding the quantum of the costs, I note that the claim was a fairly simple breach of contract/negligence claim involving alleged defects to a house that was purchased by the plaintiffs from the Schmiedls in 2004.

[ 4 ] The amount claimed by the plaintiffs was sizeable and the plaintiffs generated several experts’ reports that were produced during the litigation. However, none of the experts’ reports was long or complicated.

[ 5 ] The action lingered in the court system for many years. During that time there was sporadic activity on this file including the exchange of affidavits of documents, two days of examinations for discovery, and one pretrial. Thereafter, this action fell into the status hearing process and was eventually dismissed.

[ 6 ] The Bill of Costs of the Schmiedls and the Bill of Costs of McInerney indicate that counsel for both have invested approximately the same amount of time into this case. Thus, I am of the view that both the Schmiedls and McInerney should receive approximately the same costs award.

[ 7 ] I note that the disbursements of McInerney are slightly higher than those of the Schmiedls primarily because McInerney used Toronto counsel to deal with this Welland action. This generated greater charges for travel and mileage by McInerney’s counsel. In my view, the disbursements caused by a defendant’s choice to use out-of-town counsel are not properly assessable against an unsuccessful plaintiff.

[ 8 ] In consideration of all of these factors, I will allow both the Schmiedls and McInerney a costs award of $12,500.00 for all costs, inclusive of fees, disbursements, and taxes.

[ 9 ] Therefore, it is ordered that the plaintiffs pay to each of the Schmiedls and McInerney the sum of $12,500.00 for costs, all inclusive, payable within 30 days.

Henderson J.

Released: September 13, 2012

COURT FILE NO.: 1633/04

DATE: 2012-09-13

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Jan Kelly Spendiff and Rodney James Spendiff Plaintiffs - and – Janet Frances Schmiedl, Keith Sinclair Schmiedl and Philip J. McInerney carrying on business as Castlerock Professional Home Inspections Defendants COSTS ENDORSEMENT Henderson J.

Released: September 13, 2012