SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO. : 08-CV-40947

DATE: 2013/04/19

RE: Mehran Faridani v. Ivanette Stubbert et. al.

BEFORE: Master MacLeod

COUNSEL: Timothy N. Sullivan for the defendant and plaintiff by counterclaim, Ivanette Stubbert, (Moving Party)

Mary C. Simms for the plaintiff, defendant by counterclaim, (Responding Party)

HEARD: February 22nd, 2013

costs award

[1] On February 26th, 2013 I released reasons dismissing a motion to amend the counterclaim to add a plea of sexual battery. I have now received submissions on costs.

[2] Ordinarily the party that is successful on a contested motion is entitled to costs and unless the justice of the case otherwise requires it the court is obligated to fix and award those costs payable within thirty days. This is pursuant to Rule 57.03 (1). On a pleading amendment motion the party seeking to amend the pleadings may have to pay costs even if the motion is successful because it is implicit in Rule 26.01 that if the defendant suffers prejudice that can be remedied by an award of costs it is appropriate to grant such an award.

[3] I note that Mr. Sullivan attempts to link the pleading amendment motion to certain other motions previously argued before Master Roger. Those motions or portions of the motion were never before me and Master Roger was seized of those costs. In fact he dealt with them. I am dealing only with the motion I actually heard and not with any other steps in the proceeding.

[4] In this case there were amendments granted that were not opposed but the plaintiff by counterclaim was unsuccessful on the contested portion of the motion. There is not sufficient reason in the submissions of counsel to persuade me that it would be unjust to follow the rule and award costs.

[5] Having regard to the costs outline, the nature of the litigation, the amount in dispute between these parties and the submissions of counsel received in writing costs will be on the ordinary or partial indemnity scale. The motion was neither complex nor lengthy. A reasonable costs award in all of the circumstances is $1100 for fees plus HST of $143 and the disbursements of $261.73 (HST inclusive).

[6] In conclusion the defendant is to pay costs to the plaintiff on a partial indemnity scale fixed at $1504.73. These costs are to be paid by May 20th, 2013.

Master C. MacLeod

Date: April 19th, 2013