SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO: CV-12-446617
DATE: 2012-10-16
RE: Sandro Colavecchia and Christene De Gasperis
Plaintiffs
- and -
The Berkeley Hotel Limited
Defendant
BEFORE: The Honourable Mr. Justice Robert F. Goldstein
COUNSEL:
Michael Cohen,
for the Plaintiffs
Susan Keenan,
for the Defendant
HEARD: Written submissions
E N D O R S E M E N T
AS TO COSTS
[1] On August 16, 2012 I granted the Defendant’s motion to dismiss the action. On August 17, 2012 I released my reasons. I awarded costs to the Defendant and indicated that I would consider written submissions in relation to the issue of costs. Both parties subsequently provided me with comprehensive written submissions.
[2] Mr. Cohen asked that I consider not awarding costs at all. I have carefully considered his submissions but I believe that there is no reason to depart from the usual rule that costs are awarded to the winner.
[3] Costs are within the discretion of the Court: Courts of Justice Act , s. 131(1). Rule 57.01(1) sets out the factors that the Court may consider in awarding costs. The over-arching principle is that the Court should fix an amount that is fair and reasonable: Boucher v. Public Accountants Council for Ontario , 2004 14579 (Ont.C.A.), 71 O.R. (3d) 291, [2004] O.J. No. 2643 (C.A.)
[4] The Defendant submits a detailed bill of costs that accounts for all of the time spend on this action. Those costs include time spent preparing for the motion by senior counsel and junior counsel, preparation for and attendance at cross-examinations on an affidavit, and attendance at the motion. Ms. Keenan, the junior counsel, did the lion’s share of the work on behalf of the Defendant, including arguing the motion. The Defendant asks for $25,292.42 on a partial indemnity basis, inclusive of HST and disbursements.
[5] The Plaintiffs argue that costs in the amount of $5,000 are much more realistic, given that many of the steps taken by the Defendant were unnecessary. The Plaintiff also points to the fact that the key case that I followed in determining the outcome, Club Resorts Ltd. v. Van Breda , [2012] SCC 17, was decided by the Supreme Court of Canada after the action was commenced.
[6] In the Van Breda action at trial level costs in the amount of $75,000.00 were awarded to the successful party: Van Breda v. Village Resorts Ltd., [2008] O.J. No. 3120(Sup.Ct.) . In the Court of Appeal $45,000 each was awarded to the two leading respondents: Van Breda v. Village Resorts Ltd., 2010 ONCA 232 , [2010] O.J. No. 1220 (C.A.). I note that in that case the motion in the Superior Court consumed two days, was “hard fought”, involved multiple parties, and was considered fairly complex.
[7] In Cannon v. Funds For Canada Foundation , [2010] ONSC 5658 (Sup.Ct.) Justice Strathy awarded costs totaling just under $62,000.00 in a matter that raised issues similar to this case.
[8] I consider the following factors:
• I do not accept Mr. Cohen’s point that much of the cross-examination of his client was unnecessary and a waste of time. I reviewed the transcript. It is true that some of the cross-examination was unnecessary, as I said in my reasons, particularly as to Ms. De Gasperis’s family connections and resources. That said, it was Mr. Cohen who prevented Ms. Keenan from asking many legitimate questions and was needlessly confrontational.
• Neither party took steps to prolong the action.
• Although the matter did pre-date the Supreme Court’s decision in Van Breda , by the time the motion was brought Van Breda had been decided, thus reducing the uncertainty in the law and reducing complexity. Overall, the motion was not especially complicated.
• The motion itself only took one half-day.
[9] As Justice Strathy pointed out in Cannon , the Plaintiffs could have reasonably anticipated that the Defendant would incur substantial costs in dealing with this important motion, as it had the potential to decide the outcome of the entire action, and did. In my view, the fair and just amount to award in this case is $15,000.00.
GOLDSTEIN, J.
DATE: October 16, 2012