SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-10-099863-SR
DATE: 20130125

RE: LAWRENCE PELLICCIONE and R. CELESTE PELLICIONE, Plaintiffs

AND:

HERMANN GERDITSCHKE and YORK NORTH REALTY LIMITED carrying on business as ROYAL LEPAGE YORK NORTH REALTY, Defendants

BEFORE: THE HONOURABLE MR. JUSTICE J.R. McCARTHY

COUNSEL:
Michael A. Handler, for the Plaintiffs

Charles Gerditschke agent for the defendant, Herman Gerditschke

HEARD: by written submissions

COSTS ENDORSEMENT

[1] The trial of this matter took place before me on November 20, 21, 22, 23 and 26, 2012.

[2] At the conclusion of trial, I gave judgment for the plaintiff in the amount of $50,000 plus any accumulated interest and directed the defendant Realtors, who did not participate in the trial, to forward sums held by them in trust to the plaintiffs’ solicitors in satisfaction of the judgment.

[3] The parties were invited to make costs submissions in writing and to prepare a form of judgment in draft for review and approval by the court. The plaintiffs submitted their costs submissions and proposed form of judgment on December 4, 2012. The defendant has declined or neglected to submit any submissions on costs or to submit a proposed draft judgment for consideration by this court.

[4] The plaintiffs were successful at trial. They are presumptively entitled to costs. They propose an amount of $39,257.70 on account of costs plus appropriate taxes and disbursements for a total of $48,253.56. Their written submissions, with supporting documentation, (including a bill of costs) are now made lettered Exhibit “D” to these proceedings.

[5] No formal offers were submitted by either party under Rule 49. The offer to settle made by the plaintiff following the pre-trial was withdrawn well prior to trial. I am not satisfied that it should serve as a factor to weigh in exercising my discretion on costs. The order of Mr. Justice Stong contains an amount for costs thrown away in favour of the plaintiffs in the amount of $2,500. That order stands on its’ own and was not, to my knowledge, appealed or varied. Accordingly, it would not be appropriate to award the plaintiffs a further amount for preparation and attendance in May 2012.

[6] I am not persuaded that the failure to admit certain facts should weigh heavily on my discretion. The responses to the Request to Admit were not blank denials. There were some admitted facts and the parties were able to cobble together a short but helpful list of agreed facts for trial. The defendant did not pursue his counterclaim at trial.

[7] I agree that the conduct of both Hermann Gerditsckhe and his son Charles, serving as his agent, prolonged the trial significantly. There were unnecessary delays caused by the defendant’s intransigence as a witness. The agent for the defendant required the guidance, direction and corrective assistance of the court on numerous of occasions. While this is not unexpected in situations where a lay agent is representing the interests of a litigant, the additional cost caused by these delays should not be borne by the plaintiffs, especially when they prevail in the result as was the case here.

[8] The defendant chose not to avail himself of a certified German interpreter for his testimony at trial as ordered by Stong J. In my view, an acceptable, certified interpreter would have greatly facilitated the defendant’s ability to understand the proceedings and the questions asked of him in both chief and cross examination. His failure to comply with this order greatly hampered his ability to testify and rendered his evidence essentially worthless. It also unnecessarily prolonged the trial. The defendant’s outbursts were also a factor in extending the trial beyond its original estimate of three days.

[9] I am mindful that the amount claimed in the case was within the jurisdiction of the monetary amounts in Rule 76. However, other than the procedure on oral discoveries, there would be nothing inherently different about the way in which the matter would have been tried under that Rule. The plaintiffs ran their part of the trial with great efficiency. They did everything to move the matter along.

[10] Costs must be proportional to the result. The amount claimed was $50,000. That amount was recovered. The issues in this case were of moderate complexity. The law of forfeiture needed to be explored. There were a large number of documents to review and interpret. The case required an average amount of preparation for proper presentation to the court.

[11] The disbursements claimed are entirely proper and recoverable.

[12] I am prepared to fix costs at $35,654.19 made up of the following: $30,000 for costs, HST on that amount of $3,900 plus assessable disbursements of $1,754.19.

[13] I am also prepared to accept the form of judgment put forward by the plaintiffs as part of their submissions. There shall be judgment in favour of the plaintiffs in the amount of $50,000 plus accrued interest plus costs of $35,654.19.

[14] Judgement to go accordingly.

McCARTHY J.

Date: January 25, 2013