SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

RE: Albert Giglio, Audubon Transport Limited, and Alcar Holdings Limited, Plaintiffs

AND:

Victor Peters, Wilfred Goldlust, Frank Lecce, Universal Disposal Services Limited, Vesdar Investments Limited, Essential Holdings Limited, Ontario Material Recycling Centre Inc., Universal Environmental Enterprises Inc., 170 Clairville Properties Limited, and Tory, Tory, Deslauriers & Binnington, Defendants

AND BETWEEN:

Victor Peters, Universal Disposal Services Limited, Vesdar Investments Limited, Essential Holdings Inc., Ontario Material Recovery Centre Inc., Universal Environmental Enterprises Inc. and 170 Clairville Properties Limited, Plaintiffs by Counterclaim

AND:

Albert Giglio, Audubon Transport Limited, Alcar Holdings Limited, Nick Giglio, Carla Giglio, Hytec Recycling And Waste Systems Inc., Preferred Recycling Inc., Cam Tenaglia And Giglio’s Fruit and Garden Centre Limited, Defendants by Counterclaim

BEFORE: D. M. Brown J.

COUNSEL: T. O’Sullivan and T. Wynne, for the Moving Party, Victor Peters

A.J. Esterbauer, for the Respondent, Edward Battiston

HEARD: December 12, 2012

endorsement

I. Terms of adjournment; costs thrown away

[ 1 ] Victor Peters, a plaintiff by counterclaim, moves under Rule 57.07 of the Rules of Civil Procedure for an order requiring Edward Battiston, the former solicitor for the plaintiffs and defendants by counterclaim, to pay personally his costs of this action and counterclaim on a substantial indemnity basis. The notice of motion is dated May 29, 2008. A five to eight-day hearing of the motion, with viva voce evidence, was scheduled to start before me today.

[ 2 ] The respondent, Edward Battiston, sought an adjournment of the hearing due to health reasons, specifically the occurrence of elevated high blood pressure evidently linked to cardiovascular surgery he underwent on October 2, 2012. Mr. Battiston’s counsel provided counsel for the moving party with a letter from Mr. Battiston’s family physician, Dr. V. Stefou. In the circumstances, the moving party consents to the adjournment, but seeks payment of its costs thrown away.

II. New hearing date

[ 3 ] Dealing first with the re-scheduling of the hearing, the motion hearing will proceed before me commencing June 10, 2013. Counsel anticipate that the hearing will last five days.

III. Case conference in the second half of February, 2013

[ 4 ] In his letter Dr. Stefou recommended that the trial date be rescheduled to a date “about 6 months in the future”. He wrote: “I do not feel that [Mr. Battiston] should be doing any type of work that involves him becoming anxious as his blood pressure will rise and hinder his recovery.” In light of those comments by Dr. Stefou, I think it prudent to direct the holding of a case conference before me in the last half of February to obtain an update on Mr. Battiston’s health and the likelihood of his availability for the June trial. Counsel shall agree upon and book a date for a 30-minute case conference for that period of time no later than December 21, 2012.

[ 5 ] If Mr. Battiston’s medical problems continue, I would request counsel to discuss the feasibility of resorting to Rule 36 to secure Mr. Battiston’s evidence for use at trial.

IV. Costs thrown away

[ 6 ] Finally, Mr. O’Sullivan sought some award of costs thrown away due to the adjournment. It was not in dispute that counsel for the moving party only learned yesterday (or over the weekend) that Mr. Battiston had undergone cardiovascular surgery this past October. Mr. O’Sullivan submitted that had Mr. Battiston’s surgery been brought to the attention of the moving party back in October, an adjournment of the hearing could have been arranged at that time and the moving party could have avoided incurring legal costs which, given the adjournment, are effectively thrown away. Mr. Esterbauer submitted that any issue concerning costs thrown away should be deferred to the June, 2013 hearing.

[ 7 ] As Mr. O’Sullivan pointed out in his submissions, the Commercial List Practice Direction states that “Co-operation, communication and common sense shall continue to be the principles of operation of the Commercial List.” If a party, or its counsel, becomes aware of a medical condition which might affect the ability of a hearing to proceed on a scheduled date, the party, or its counsel, must communicate that information as soon as possible to the opposing side. Early communication results in more accurate scheduling and reduced costs.

[ 8 ] In the present case counsel for the moving party was not told about Mr. Battiston’s surgery until over two months after the fact. Had that information been provided to moving party’s counsel in October, I have no doubt that a new hearing date would have been set and some legal costs avoided. Consequently, the moving party is entitled to some award of costs caused by the very late adjournment request.

[ 9 ] The moving party did not file a bill of costs. Mr. O’Sullivan estimated his client’s full indemnity preparation costs at around $70,000, and he thought that about half of that amount represented costs thrown away. The moving party sought an award of $30,000 for costs thrown away.

[ 10 ] Mr. Esterbauer submitted that the amount sought was much too high. Even if half of the time spent was thrown away, that would result in full indemnity costs of $35,000, or partial indemnity costs of $17,500. Although Mr. Esterbauer submitted that any consideration of costs should await the hearing. In the alternative, he submitted that $10,000 would represent a fair award for costs thrown away.

[ 11 ] I agree. Inevitably the moving party will lose the benefit of some of the preparation work already performed by his counsel, and counsel will have to “ramp back up” to a certain extent. But, since the adjournment request came on the eve of the hearing, no doubt drafts of examinations and arguments have been prepared by counsel for the moving party. Based on the daily fee numbers provided by Mr. O’Sullivan, an award of $10,000 would represent partial indemnity costs for two days’ work by Ms. Wynne and himself. I regard that as a reasonable estimate of the amount of preparation time thrown away, and I therefore order Mr. Battiston to pay Mr. Peters costs thrown away fixed in the amount of $10,000 within 10 days of the date of this order.

D. M. Brown J.

Date : December 12, 2012