Court File and Parties

COURT FILE NO: CV-11-419288
DATE: 20131031

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ewart F. Brown and Derrick v. Burgess

Plaintiffs

• and -

Sam Spagnuolo and Lawrence Brady

Defendants

BEFORE: The Honourable Mr. Justice Stephen E. Firestone

COUNSEL: Charles F. Scott & Christine Muir,
for the Plaintiffs (Responding Parties)

Jameel Madhany,
for the Defendant Spagnuolo

Aaron Dantowitz,
for the Defendant Lawrence Brady (Moving Party)

HEARD: Written Submissions

COSTS ENDORSEMENT

[1] On August 23, 2013 by way of written Reasons, I ordered that the action as against the defendant, Brady, be dismissed having found that the action lacked a real and substantial connection with Ontario.

[2] In my reasons I indicated that if the parties could not agree on costs, written submissions could be submitted.

[3] Costs are within the discretion of the Court: Courts of Justice Act, s. 131(1). The court has broad discretion when determining the issue of costs. Rule 57.01 (1) sets of the factors the Court may consider when determining costs.

[4] A successful party is entitled to costs in the absence of a very good reason(s) to not report them (Schreiber v. Mulroney, 2007 31754 (ON SC), [2007] O.J. No. 3191 (Sup.Ct.) at para. 2.

[5] The overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay, in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant. (Boucher v. Public Accountants Counsel for Ontario, 2004 14579 (Ont.C.A.)

[6] The defendant, Brady, who was successful on this motion, seeks his costs on a partial indemnity basis in the sum of $25,645.47 inclusive of taxes and disbursements.

[7] They argue that the hours claimed are less than the actual hours billed and represent what is fair and reasonable in the circumstances.

[8] They submit that this was a case of some complexity and of great importance in which Brady was facing a claim for damages in the sum of $2 million dollars. It also involved multiple legal issues and sub-issues, some of which were raised for the first time in the responding factum necessitating written reply submissions. They also highlight that the proceeding involved an evidentiary record which added to the complexity.

[9] They further submit that the cross-examination of Brady on his affidavit was unnecessary and not useful in determining the issues on this motion and were tantamount to early discovery.

[10] The plaintiffs on the other hand argue that the evidentiary record filed with the court by Brady was not extensive. As well, the cross-examination of Brady lasted only a few hours and there was nothing improper about Brady’s cross-examination which should be considered in determining the quantum of costs.

[11] The cross-examination they state was not meant to obtain early discovery, but was rather aimed at testing the veracity of his affidavit evidence. Further, Brady’s cross-examination evidence was relied on extensively by the plaintiffs in their submissions and provided a basis for the plaintiffs’ arguments in respect of attornment to the jurisdiction, the inapplicability of the State Immunity Act as well as Brady’s real and substantial connection to Ontario.

[12] Any delay they argue which arose due to the scheduling of the cross-examination of Brady was consented to and later unopposed. As well, security in the sum of $3,000 was deposited into the trust account of their counsel to satisfy Brady’s concerns regarding prejudice arising from the adjournments.

[13] Finally, the motion resolved the issue of jurisdiction only. The veracity of the plaintiffs’ allegations was not tested on this motion, and any implication that the action was speculative is not relevant to the issue of costs.

[14] The plaintiffs submit that fair and reasonable costs on this motion would be in the amount of $18,000.00 inclusive of disbursements and tax.

[15] I have considered the submissions of counsel as well as the relevant legal principles. Given the complexity of the matter, the results achieved, and experience of counsel, I order partial indemnity costs of this motion in the all-inclusive sum of $21,000.00 payable by the plaintiffs to the defendant, Brady, within 60 days.

Firestone J.

DATE: October 31, 2013