Endorsement on Costs

COURT FILE NO.: 55854

DATE: 2013/07/16

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Flora Chan and Emil Chan (Plaintiffs)

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Zienb Husni Abdo and Husni Abdo (Defendants)

BEFORE: Justice H. A. Rady

COUNSEL: Lucy Lee, for the Plaintiffs

Michelle Packer, for the Defendants

HEARD: Costs Submissions received in writing June 4, 2013 and June 14, 2013

ENDORSEMENT ON COSTS

[1] The plaintiffs seek their costs following their successful defence of the defendants’ motion for summary judgment. The defendants had sought an order dismissing the claim because it was brought more than two years after the motor vehicle accident. The motion was dismissed on the basis that discoverability was an issue requiring trial. In my view, the motion was properly brought particularly in view of this claim’s protracted history including several trial adjournments, none of which were the fault of the defendants. The motion also raised a very interesting issue respecting the interplay between discoverability and the plaintiff’s admitted knowledge of the relevant two-year limitation period prior to its expiry.

[2] Neither counsel nor I could locate a case on point. Adding to the factual complexity was plaintiffs’ former counsel’s evidence that a claim was not issued within the two-year limitation period because of inadvertance.

[3] The plaintiffs seek costs on a substantial indemnity basis of $23,952.65 inclusive of disbursements and HST. In support of their request, the plaintiffs submit that the defendants must surely have known that the motion would fail. Given my comments above, this argument cannot succeed.

[4] The defendants properly recognize their liability for a modest costs award. I agree with their submission that the motion may result in a costs savings because the plaintiffs were obliged to marshall evidence respecting the discoverability issue, which will also be relevant at trial.

[5] I have reviewed the plaintiffs’ costs outline and note that some 108.4 hours were spent, some of the work properly delegated to students. However, it strikes me as excessive in the circumstances, particularly when there had already been an earlier motion for summary judgment (which was dismissed by Carey J. because it was on the eve of the then scheduled trial). Presumably, much of the work had already been done and covered by the costs order made at that time.

[6] The overall objective of fixing costs is to arrive at a figure that is fair and reasonable to the unsuccessful party. In the circumstances, I consider the sum of $7,500.00 plus disbursements and HST to be fair and reasonable.

“Justice H. A. Rady”

Justice H. A. Rady

Date: July 16, 2013