NEWMARKET COURT FILE NO.: CV-13-113950

DATE: 20131009

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

IRWIN DIAMOND

Applicant

– and –

996087 ONTARIO LIMITED o/a THE ACADEMY FOR GIFTED CHILDREN – P.A.C.E., 1366652 ONTARIO LTD., 1438823 ONTARIO INC. and BARBARA ROSENBERG

Respondents

N. Schernitzki, for the Applicant

F. S. Turton, for the Respondent Barbara Rosenberg

HEARD: by written submissions

REASONS FOR DECISION ON COSTS

DiTOMASO J.

THE PROCEEDINGS

[1] Two competing motions were heard on August 30, 2013. My Reasons for Decision were released on September 5, 2013. For those reasons given, Mr. Diamond’s motion was dismissed. As for Ms. Rosenberg’s motion, I ordered that:

(a) the Rosenberg action shall proceed;

(b) the Diamond application shall be stayed; and,

(c) all Mr. Diamond’s claims shall be asserted by way of counterclaim in Ms. Rosenberg’s action.

[2] Costs were to be dealt with by way of written submissions. I have reviewed those written submissions together with my Reasons for Decision.

POSITIONS OF THE PARTIES

Position of Irwin Diamond

[3] On behalf of Mr. Diamond, it is submitted that the costs of the motions and application should be reserved to the trial judge. The Rosenberg action and the Diamond application deal with similar issues which have not yet been determined.

[4] In the alternative, if costs are awarded to Ms. Rosenberg, they should only be paid in the cause and in the further alternative, if costs are awarded they should be awarded in any event of the cause so that said costs could be set off against any costs found owing to Mr. Diamond.

[5] If costs are fixed, it is submitted that they should be paid on a partial indemnity scale in the amount of $3,872.51 plus HST. It is submitted that the costs sought by Ms. Rosenberg are excessive in the amount of $7,000. The motions were procedural in nature with no final determination made regarding any substantive rights. Further, the timing of the commencement of Ms. Rosenberg’s action ought to be considered adversely while an appointment was pending before the Commercial Court.

Position of Barbara Rosenberg

[6] On behalf of Ms. Rosenberg, it is submitted that she is the successful party in respect of both motions. Costs ought to follow the event on a partial indemnity scale. This was a procedural motion that did not determine substantive rights and could have been dealt with in one motion as opposed to two. Mr. Diamond decided to bring his motion which sought other relief and increased the costs of litigation particularly if he was unsuccessful. The removal of certain objectionable paragraphs in the affidavit evidence filed on behalf of Mr. Diamond unnecessarily lengthened the proceedings and should have been conceded in advance of the return date.

[7] In addition, the factum filed on behalf of Mr. Diamond was not concise which only increased costs.

[8] It is submitted that it was within Mr. Diamond’s reasonable expectation that if he was unsuccessful increased costs would be considered given his approach to the motions. On behalf of Ms. Rosenberg, it is submitted that the sum of $7,000 in total is a fair and reasonable amount for these motions.

DECISION

[9] I find that Ms. Rosenberg is the successful party in respect of both motions. I am not persuaded that costs should be reserved to the trial judge. Rather, costs follow the event and ought to be paid by Mr. Diamond on a partial indemnity scale.

[10] This was a procedural motion and did not deal with the determination of substantive rights. The matter could have been dealt with by one motion as opposed to two. However, Mr. Diamond on his motion went further and sought not only to stay the Rosenberg action but also to strike Ms. Rosenberg’s statement of claim for failing to disclose a reasonable cause of action. In addition, he sought to have her statement of claim struck on the grounds that her action was frivolous, vexatious or otherwise an abuse of process. For the reasons that I gave, Mr. Diamond’s motion was unsuccessful and dismissed.

[11] As for the submission on behalf of Mr. Diamond that the timing of Ms. Rosenberg’s commencement of action would be sufficient to deprive her of costs, I disagree. The ultimate question to be determined was, “how should this matter proceed” and on that issue and others, Ms. Rosenberg was entirely successful.

[12] I have considered what costs would be fair, reasonable and proportional given the hourly rate and time spent by Ms. Rosenberg’s counsel, given the success of Ms. Rosenberg on both motions and given the Rule 57 factors which I have considered as part of the submissions of counsel.

[13] I have considered what amount is fair, reasonable and proportional in all the circumstances regarding these two motions. I disagree with counsel for Mr. Diamond that these proceedings were not necessarily complex. A reading of my reasons for decision would indicate quite the contrary.

[14] I fix costs in the total amount of $6,000 inclusive of fees, disbursements and HST. These costs are assessed on a partial indemnity basis. I consider such costs to be fair, reasonable and proportional and to be within the reasonable expectation of Mr. Diamond to pay in the event that he was unsuccessful.

[15] There is no reason for these costs to be paid in the cause or in any event of the cause or to be reserved to the trial judge. These costs which I have fixed shall be paid to Ms. Rosenberg by Mr. Diamond within 30 days of the date of this decision.

DiTOMASO J.

Released: October 9, 2013