Superior Court of Justice - Ontario

COURT FILE NO.: 99-CV-162065SR
DATE: 20120125

RE: JIM EBY

Plaintiff

AND:

PAUL REUBER AND JANN STEFOFF

Defendants

BEFORE: Mr. Justice Lederer

COUNSEL:
John R. Hart , for the Plaintiff

Murray Klippenstein , for the Defendants

COSTS ENDORSEMENT

[ 1 ] This was a motion brought by the defendant for summary judgment or an order dismissing the claim for delay. The motion was successful.

[ 2 ] The circumstances leading to the action took place in January and February, 1993. Over the eighteen years between then and this motion, the plaintiff did nothing other than serve a Notice of Action and Statement of Claim during July, 1999 and serve Notices of Motion, on August 10, 2010, seeking to return the action to the trial list and, on May 3, 2011, for summary judgment. The reasons issued in respect of the motion, brought by the defendant dismissing the claim for delay, observe:

Quite apart from prejudice to the defendant, allowing this trial to proceed in these circumstances would be a misuse, if not an abuse, of the court. It is simply not reasonable to ask, nor will the public readily accept, that justice can be responsibly administered when nearly twenty years have passed and nothing has been done to move the action towards trial.

( Eby v. Reuber, 2011 ONSC 6729 , at para. 23 )

[ 3 ] The defendant seeks costs of the motion, on a substantial indemnity scale, of $42,165.20. There is no question but that the defendant should be awarded his costs and, given the failure of the plaintiff to do much of anything for nearly twenty years, these costs should be on an elevated scale. But $42,165.20 is too much. This is especially so where the claim is justified only by two paragraphs each outlining the contribution of one of the two lawyers involved and, on this basis, ascribing eighty-five hours to one of them and one-hundred and fifteen hours to the other, without any further detail or breakdown. This is not enough on which to base a claim of this amount in these circumstances. On the other hand, there is simply no rational basis on which the actions of the plaintiff can be explained. A substantial award of costs should be made, but there is no justification for the amount asked for.

[ 4 ] I order costs to be paid by the plaintiff to the defendant in the amount of $30,000, inclusive of disbursements and GST.

LEDERER J.

Date: 20120125