Superior Court of Justice - Ontario

Court File No.: 1665/09
Date: 20120107

RE: LOUANNE MARIE DERESKI, Applicant

AND:

DAVID WILLIAM PERCIVAL ELLIS, Respondent

Before: T. MCEWEN J.

Counsel:
Joseph Bisceglia, for the Applicant

Michael Walz, for the Respondent

Heard: August 20, 2012

COSTS ENDORSEMENT

[1] I have reviewed the written submissions of counsel with respect to the issue of costs.

[2] The Applicant seeks costs on a full indemnity basis while the Respondent submits that there should be no order made as to costs.

[3] There is no doubt that the Applicant succeeded at the motion but, at the same time, no offer to settle was served by the Applicant. I do not, however, agree with the submissions of the Applicant that the position taken by the Respondent was entirely without merit, if not slanderous with respect to Mr. O’Neill. While I ultimately found against the Respondent, I do not believe that he engaged in any egregious behaviour. Accordingly, in my view, it would not be appropriate to award full indemnity.

[4] That being said, however, the motion in front of me was a complicated one which necessitated a great amount of preparation by both sides. Furthermore, there is no doubt that the Applicant’s costs were increased as a result of Mr. O’Neill having to remove himself as counsel of record for the purposes of the motion.

[5] I have reviewed the Costs Outline of the Applicant and I am prepared to allow some duplication. In my view, however, some of the work done by Mr. O’Neill is not recoverable as it deals with usual work on the file and there is some unnecessary duplication between the Applicant’s counsel.

[6] In the circumstances, I would award Dereski partial indemnity fees in the amount of $20,000 plus HST, as well as disbursements, inclusive of HST, in the amount of $729.46.

T. McEwen J.

Date: January 7, 2013