ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 08-CL-7399
DATE: 20130114

B E T W E E N:

PATRICIA BUCCILLI and
DRAPERY INTERIORS ETC. INC.

Plaintiffs

• and -

PASQUALE PILLITTERI also known as
PAT PILLITTERI, CHRISTINA PILLITTERI, PATRON CONTRACTING LIMITED also known as CDC CONTRACTING, BIRCHLAND HOMES INC. and VENDRAIN INC.

Defendants

Michael R. Kestenberg and Thomas M. Slahta, for the Plaintiffs

Peter R. Greene, Kyle Peterson and Brigid Wilkinson, for the Defendants

E N D O R S E M E N T

[1] On November 23, 2012 I granted judgment in favour of the plaintiff Patricia Buccilli. I ordered that she was entitled to her costs and that if they could not be agreed, brief written submissions could be made by her within 15 days, including a proper cost outline, and brief reply submissions could be made within a further 15 days.

[2] Costs have not been agreed. I have now had cost submissions. Ms. Buccilli claims costs on a substantial indemnity basis of some $587,000 inclusive of disbursements and HST. A cost outline in accordance with the rules has been provided.

[3] The defendants contend that this is one of the rare cases that should be sent to an assessment officer to assess the costs. They assert that the reason why there should be an assessment is that no dockets or invoices particularizing and supporting the fees and disbursements claimed have been provided.

[4] The rules provide that the court awarding costs shall fix the costs except in an exceptional case. See rules 57.01(3) and (3.1). Rule 57.01(7) provides that the court shall devise and adopt the simplest, least expensive and most expeditious process for fixing costs and that costs may be fixed after receiving written submissions. Thus the thrust of the rules is clear. Only in an exceptional case should costs be sent for an assessment with all of the trappings of an assessment.

[5] In my view, if a party has complied with the rules, and in this case with my direction regarding costs, I do not see how it can be said to be an exceptional case warranting an assessment just because dockets or invoices supporting disbursement have not been provided. I do not think that the statement of Morden A.C.J.O in Murano v. Bank of Montreal (1998), 1998 5633 (ON CA), 41 O.R. (3d) 222 (C.A.) that a judge should not fix costs on his or her own motion is now applicable in light of the amendment to the rules on January 1, 2002 that added rule 57.01 (3) which states that “When the court awards costs, it shall fix them in accordance with sub-rule (1) and the Tariffs”.

[6] Moreover, the defendants contend that a deduction should be made for costs incurred in connection with a claim for rent that was withdrawn only at the end of the trial during argument. I am in a far better position that an assessment officer would be to consider the time at trial taken up with this issue.

[7] I decline to direct an assessment of the costs. If the defendants wish to review the dockets of the plaintiff or the invoices supporting disbursements, they should request these from the solicitors for the plaintiff. The dockets may have to be expurgated to remove any privileged information. Once received, the defendants will have 10 days to file any further response to the cost request of Ms. Buccilli and she shall have 10 days to file any reply. The defendants are reminded however, that the process to fix costs is not on an item by item basis as would be done by an assessment officer.

Newbould J.

DATE: January 14, 2013