COURT FILE AND PARTIES

COURT FILE NO.: 11-0391
DATE: 20120924
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Paul Elgar and Andrea Elgar, Plaintiffs

AND:
Sarah Jean Koetsier, Peter John Koetsier, Robert Vandervelde, Darlene Vandervelde and 1427992 Ontario Ltd. o/a Woods Landing, Moving Parties/Defendants

BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY

COUNSEL:
W.R. Kerr, for the Plaintiffs

G. Karayannides, Counsel for the Moving Parties/Defendants Vandervelde and 1427992 Ontario Ltd. o/a Woods Landing

HEARD: By written submissions

ENDORSEMENT

[ 1 ] This costs endorsement relates to a motion brought by the defendants 1427992 Ontario Ltd. and Robert and Darlene Vandervelde to enforce a settlement agreement between the parties. The defendants were wholly successful on the motion and should have their costs.

[ 2 ] Although the defendants seek full indemnity on the basis of the plaintiffs’ conduct throughout the proceeding, little evidence of this conduct was provided in the affidavits submitted and considered on the motion. As such, I believe that it would be improper to consider the facts referred to in paras. 5-8 of the defendants’ submissions, particularly when no such findings were made by the court.

[ 3 ] However, subrule 57.01(1)(e) does direct the court to consider, among other factors, the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding. The failure of the plaintiffs to acknowledge that they had entered into a binding agreement, even after they had retained counsel and obtained legal advice, was unreasonable. Although they may have had an honest belief that the terms of an agreement had not been finalized, after receiving legal advice they ought to have reviewed their position more critically, on the basis of the law to be applied. Their refusal to do so is what necessitated the hearing of the motion.

[ 4 ] I can, and do, also take into account the length of this proceeding and the fact that the long-awaited settlement, once reached, was not honoured by the plaintiffs.

[ 5 ] I also take into account that this motion was necessary and reasonable for the defendants to bring in the circumstances, and a judicial determination of the issue was of great importance to them.

[ 6 ] Rule 57.01 also permits the court to consider any offer to settle. The settlement proposal dated October 6, 2011, was such an offer to settle. It remained open for acceptance up until the hearing of the motion. Of course, it was the defendants’ position that it had been accepted, and the plaintiffs held a contrary view. That did not prevent the plaintiffs from changing their minds and accepting the offer, given the litigation risks and subsequent cost consequences.

[ 7 ] In terms of the amount of costs that the plaintiffs could reasonably expect to pay in relation to this motion, they submit their own Bill of Costs in the amount of $6,000, calculated on a partial indemnity basis.

[ 8 ] Although the plaintiffs protest that there was no need for the defendants to retain Toronto counsel at an expensive rate to represent them at this motion, the defendants are entitled to the counsel of their choice. It is reasonable that they would use the same firm that represented them in the action. The rates likely to be charged by this firm is a factor that the plaintiffs could have taken into account in deciding whether to avoid the motion.

[ 9 ] The plaintiffs also submit that it would be inequitable for them to have to pay further costs when the settlement already requires them to pay $15,000 toward the defendants’ costs of the action, or that at the least, costs should be reduced. Yet the court has no evidence as to how that figure was reached, and the rationale for their payment. Although in their costs submissions the plaintiffs suggest that this is an indicator of their efforts to settle the proceeding and avoid legal fees, that motivation no longer seemed to apply to the motion.

[ 10 ] I have reviewed the defendants Bill of Costs. I agree with the submissions of plaintiffs’ counsel that the time spent to prepare the motion, even given the preparation of a factum, is at the high end. Also, in a firm the size of Heenan Blaikie there would be more junior counsel or even students to defray some of the preparation costs of Mr. Diskin.

[ 11 ] Considering all of the factors listed in Rule 57.01(1), this court orders that the plaintiffs shall pay costs of the motion to the defendants, the Vanderveldes and 1427992 Ontario Ltd., fixed on a substantial indemnity basis in the sum of $15,000 and payable within 30 days.

HEALEY J.

Date: September 24, 2012