Court File and Parties

COURT FILE NO.: 02-CV-239697 SR

DATE: 20130610

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Adela Turczinski, Plaintiff

AND:

Jose Fernandes, Ana Fernandes, Antonio Da Silva and Maria Da Silva, Defendants

AND:

Stanley Kazman and Saul Jonas, Third Parties

BEFORE: Aston J.

COUNSEL:
Jayson W. Thomas, for the Plaintiff

Patrick Summers, for the Defendants Antonio Da Silva and Maria Da Silva

M. Bufton, for the Defendants Jose and Ana Fernandes

HEARD: April 18, 2013 (this was the endorsement date but is it the hearing date?)

ENDORSEMENT ON COSTS

[1] The Da Silvas are entitled to costs of the motions fixed in the amount of $6,000 all inclusive, $2,000 less than the amount claimed. Essentially I accept the submissions of counsel for the plaintiff on this aspect of the costs.

[2] Costs of the motions in favour of the Fernandes defendants are fixed in the sum of $750. In the main, I accept the submissions of counsel for the plaintiffs on this aspect of the costs. However, costs are appropriate for the time spent on the review of the motion material and the decision not to proactively engage in this aspect of the litigation.

[3] Before turning to the costs of the main action, it is appropriate to extract from the cost claims the discrete issue of the third party claims. The third party claims are deemed to be dismissed by rule 24.04. As a consequence, either or both third parties may claim costs against the defendant who added the third party. It is appropriate to order the plaintiff to indemnify the defendants for any responsibility for costs to those third parties, provided the plaintiff is given adequate notice of any claim for costs and an opportunity to participate in the determination of both the liability for and quantum of those costs.

[4] Apart from the obligation to indemnify the defendants in the third party claims, there is the question of whether the plaintiff is obliged to pay costs to the defendants themselves in that regard.

[5] The cases cited by counsel for the plaintiff in support of the proposition that no costs of the third party claim ought to be recoverable by the defendants from the plaintiff are helpful but not determinative. They address the general principles but are distinguishable on the facts. Those cases also predate the present practice of considering the reasonable expectations of the parties with respect to costs. See also the decision of Newbould J. in Guarantee Company of North American v. Resource Funding Limited, court file number 02-CV-227441 CM2 (SCJ August 4, 2009) which, in my view, supports the submission of the defendants on this point.

[6] Though the plaintiff did not bring the third parties into the action, she surely should have expected in this case that the defendants would have to do so, given the nature of her claim. The plaintiff ought to have expected a cost consequence in that regard. In my view, the defendants are entitled to partial indemnity for the costs of the third party claims as a necessary and expected aspect of defending the plaintiff’s claims.

[7] I fix those costs at $4,000 in favour of the Da Silva defendants and $3,000 in favour of the Fernandes defendants.

[8] I turn next to the costs of the main action.

[9] The Da Silva defendants are entitled to costs of the action, but only the costs of defending the plaintiff’s claim and not their counterclaim, which is deemed to be dismissed by rule 24.03. However, I do accept the submission of counsel for the Da Silvas that the additional time and effort spent on the counterclaim did not amount to half of the costs the Da Silvas incurred, and in fact amounted only to a modest addition cost to the cost that would have to be incurred just to defend the action.

[10] I am satisfied oral discoveries were appropriate given the factual and legal issues in this case. I also find the cost submissions of the Da Silvas in relation to the main action are otherwise reasonable.

[11] I fix the costs payable by the plaintiff to the Da Silvas for the main action at $26,000, all inclusive.

[12] The Fernandes defendants are also entitled to costs of the main action on the same basis. It is more difficult to segregate the costs of their counterclaim from their other costs submission. Moreover, the costs which can reasonably be passed on to the plaintiff as the responsibility of the plaintiff need to be reduced in order to reflect the reasonable expectations of the losing party.

[13] Doing the best I can in assessing the information provided to support the claim for costs by the Fernandes defendants, I fix those costs at $18,000 all inclusive. There was a separate action against these defendants before the present action. The issues were similar if not identical. In fixing the costs of the main action in this proceeding, I have assumed that less time needed to be spent in this proceeding because of what went on before, in terms of taking instructions and looking at the facts and the law. I have reduced the costs in this action to reflect what ought to have been a time saving.

[14] The Fernandes defendants also claim costs in relation to that first proceeding against them. However, it is not clear to me from the letter of January 28, 2003 that there was an agreement between counsel in the first action respecting costs. The first action is not before me and I decline to make any order for costs in relation to court file number 02-CV-231849 SR. I do so without prejudice to the right of the defendants to pursue a claim for costs in that action.

[15] In summary:

(1) the plaintiff is to pay the Fernandes defendants costs as follows:

(a) $6,000 for the motions;

(b) $4,000 on account of the third party claims; and

(c) $26,000 for the main action.

(2) The plaintiff is to pay to the Fernandes defendants costs as follows:

(a) $750 for the motions;

(b) $3,000 on account of the third party claims; and

(c) $18,000 for the main action.

In addition, the plaintiff is to indemnify each of the defendants in relation to any costs they may be ordered to pay to third parties, provided the plaintiff has adequate notice of such claims and an opportunity to participate in the determination of both the liability for costs and the quantum thereof.

Aston J.

Date: June 10, 2013