ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-51657
DATE: 2013/07/26
BETWEEN:
JOANNE ST. LEWIS
Plaintiff
– and –
DENIS RANCOURT
Defendant
Richard G. Dearden and Anastasia Semenova, for the Plaintiff
Self-Represented
HEARD: By Written Submissions
COSTS DECISION – DEFENDANT LEAVE TO APPEAL DECISION OF MARCH 6, 2013 - RE: DEFENDANT’S DISCOVERY OF THE PLAINTIFF
KANE j.
CONSIDERATION UNDER RULE 57
[1] The plaintiff seeks costs of this motion in the amount of $4,786.61 based on her written offer of settlement and the dismissal of the defendant’s motion for leave to appeal.
[2] The defendant opposes costs to the plaintiff and seeks costs against her in the amount of $500.00 for “adjournment of his motion” and also seeks leave to appeal.
SUCCESS
[3] The defendant asked for and was denied an adjournment of his motion.
[4] On his submissions as to costs, the defendant re-argues that his motion should have been adjourned and cites information he obtained subsequent to argument of this motion. This court in setting the costs issue is not conducting an appellate review of its decision. As such these submissions are irrelevant.
[5] The defendant’s motion for leave was dismissed. The defendant had failed to comply with a prior court ordered date to perfect this motion for argument. The defendant failed to comply with that order and instead sought an adjournment which was denied.
[6] In addition, this court determined that Smith J. had not yet ruled and in fact adjourned the issue whether the defendant has the right to conduct additional examination of the plaintiff to a date to be set. There was no decision to seek leave to appeal and accordingly, the motion had no merit.
[7] The defendant therefore is not entitled to costs.
[8] The plaintiff was successful in defending this motion and is therefore entitled to costs.
AMOUNT CLAIMED AND THE AMOUNT RECOVERED
[9] Not applicable.
APPORTIONMENT OF LIABILITY
[10] Not applicable.
COMPLEXITY OF THE PROCEEDING
[11] The issues on this motion were simple.
IMPORTANCE OF THE ISSUE
[12] See paragraph 1 above.
CONDUCT OF ANY PARTY THAT TENDED TO SHORTEN OR TO LENGTHEN THE PROCEEDING UNNECESSARILY
[13] Not applicable.
WHETHER ANY STEP WAS IMPROPER, VEXATIOUS OR UNNECESSARY OR TAKEN THROUGH NEGLIGENCE, MISTAKE OR EXCESSIVE CAUTION
[14] For the above reasons, this motion by the defendant should never have been brought.
A PARTY’S DENIAL OF OR REFUSAL TO ADMIT ANYTHING THAT SHOULD HAVE BEEN ADMITTED
[15] The defendant should have acknowledged this motion was premature and withdrawn the same.
EXPERIENCE OF THE LAWYER OF PARTY ENTITLED TO THE COSTS INCLUDING RATES CHARGED AND HOURS SPENT
[16] Given the years of call to the bar and the division of labour between senior and associate counsel, this court considers the rates charged to be appropriate. Given the voluminous quantity of material filed by the defendant on this motion, the quantity of time docketed by the plaintiff appears appropriate.
WRITTEN OFFERS OF SETTLEMENT
[17] The plaintiff submitted a written offer of settlement dated March 28, 2013 proposing the defendant’s discontinuance of this motion without costs. The outcome to the plaintiff exceeds that offer as costs are awarded to the plaintiff.
[18] The plaintiff’s repeated written warnings to the defendant that this motion lacked merit and the plaintiff’s intention to seek costs at a higher scale does not constitute an offer of settlement within R. 49.02. The jurisdiction of this court to fix costs based on relevant factors is perhaps broad enough to consider such warnings as a factor. The plaintiff however had the option to send a warning letter or a R. 49.02 offer and chose the former until March 28, 2013.
[19] Warning letters, unlike offers of settlement, are not binding on the sender. The R. 49.02 settlement provisions are there for a reason and should not be “equated” to warnings. Settlement offers are a step beyond warnings and have legal consequences if accepted, and potentially if not accepted.
LEVEL OF COSTS TO BE AWARDED
[20] The plaintiff is entitled to costs on a partial indemnity basis until March 28, 2013 and on a substantial indemnity basis thereafter.
AMOUNT OF COSTS THAT AN UNSUCCESSFUL PARTY COULD REASONABLY EXPECT TO PAY IN RELATION TO THIS PROCEEDING
[21] The amount of costs awarded given the early service of a written offer of settlement is within what should be the reasonable expectation of an unsuccessful party on this motion. The amount is proportional within that context.
[22] Based on the above factors, the defendant is ordered to pay costs to the plaintiff within 30 days in the amount of $4,500, including disbursements and tax.
Kane J.
Released: July 26, 2013
COURT FILE NO.: 11-51657
DATE: 2013/07/26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JOANNE ST. LEWIS
Plaintiff
– and –
DENIS RANCOURT
Defendant
COSTS DECISION – DEFENDANT LEAVE TO APPEAL DECISION OF MARCH 6, 2013 - RE: DEFENDANT’S DISCOVERY OF THE PLAINTIFF
Kane J.
Released: July 26, 2013