Court File and Parties

COURT FILE NO.: CV-08-10702CM

DATE: 2013-11-19

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ray Piche, Michael Cote, Onorio Frezza and John Ross, Plaintiffs

AND:

TD Securities Inc. and Richard Maaten, Defendants

BEFORE: Master Lou Ann M. Pope

COUNSEL:
J. Alden Christian, for the Plaintiffs, Ray Piche, Michael Cote, Onorio Frezza

Laura Paglia, for the Defendant, TD Securities Inc.

Sara Erskine, for the Defendant, Richard Maaten

HEARD: Written submissions

endorsement on costs

Endorsement on Costs

[1] In my endorsement dated October 4, 2013, I ordered that the defendant, Richard Maaten (“Maaten”), pay costs to the plaintiffs for the contested status hearing on a partial indemnity basis.

[2] At the first appearance of the status hearing on May 11, 2012, both defendants indicated that they were seeking a dismissal of the action for delay pursuant to rule 48.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. As such, a timetable was ordered for delivery of any material that the parties intended to rely on for a contested status hearing.

[3] For the following reasons, I reject Maaten’s contention that he should not be responsible for the costs of TD Securities Inc.’s (“TD”) motion because TD brought the motion.

[4] The notice of motion indicates that it was brought by TD. However, it is noteworthy that both the front and back cover pages of the motion record indicate that the motion was brought by both defendants, being entitled “MOTION RECORD OF THE DEFENDANTS”, followed by both defendants’ names and their respective counsel’s names. Further, Maaten attended all court appearances relative to the status hearing including several adjournments, cross-examination of Harold Geller and the subsequent motion arising from the cross-examination. Lastly, and most notably, Maaten’s counsel prepared the factum for the status hearing which is dated June 14 2012, well before TD settled the motion with the plaintiffs (see Maaten’s costs outline). It appears also that Maaten’s counsel also prepared the brief of authorities of the defendants. In fact, both the factum and brief of authorities are entitled “Joint”, listing both defendants’ names and their counsels’ names.

[5] TD settled the motion with the plaintiffs, with terms, and on a without costs basis after cross-examinations and after a subsequent motion. Presumably Maaten could have settled the motion with the plaintiffs on the same terms; however, he elected not to do so and to continue with the motion. Interestingly, given Maaten’s position that it was TD’s motion, he did not file an amended notice of motion.

[6] For the above reasons, I find that the motion was brought by both defendants.

[7] Also for the above reasons, I reject Maaten’s argument that the plaintiffs cannot claim the costs of the motion to the time when they settled with TD. When Maaten elected to carry on with the motion after the settlement between the plaintiffs and TD, he had the use of all the defendants’ motion material including the transcripts of the cross-examination of Harold Geller. Further, he had the benefit of having attended all appearances arising out of the status hearing. In my view, in electing to carry on with the motion Maaten risked having to pay the plaintiffs’ costs for the entire motion if he failed. Costs are always a risk in bringing a motion if it fails.

[8] Maaten submits that the usual approach where an action is allowed to proceed after a status hearing is to make no order as to costs; however, in appropriate circumstances the court may make an order as to costs.

[9] Maaten relies on numerous cases where courts have varied in their approaches to ordering costs of a contested status hearing depending on the circumstances of the action.

[10] In this action, I did not find the conduct of the plaintiffs to warrant a cost award against them for this protracted contested status hearing.

[11] In Horn v. Stefausis, 2012 ONSC 6141, where the action was allowed to proceed, the plaintiff did not seek costs. That is not the circumstance on this motion where the plaintiffs seek their costs.

[12] In my view, it is just in the circumstances of this action to make an order as to costs. The fact that the defendants sought to have the action dismissed for delay and refused to enter into a timetable at the first status hearing, caused significant delay in this action and unnecessary costs to the plaintiffs. Initially, the status hearing had to be adjourned several times. Cross-examinations were held followed by a motion arising from the cross-examinations. Moreover, a special motion date was scheduled for oral argument.

[13] The plaintiffs claim $11,999.50 plus disbursements for the costs of the motion. However, their costs outline omitted the first column entitled “Fee Items” (following the line item entitled “the hours spent, the rates sought for costs and the rate actually charged by the party’s lawyer.”) As such, there is no evidence before the court to substantiate the plaintiffs’ claim that their counsel’s firm spent 94.8 hours for all steps on this motion.

[14] Maaten filed a costs outline which sets out his costs of $3,432.38 on a partial indemnity scale.

[15] I will allow costs to the plaintiffs for the status hearing in the amount of $4,500 inclusive of fees, disbursements and HST. Maaten shall pay this amount within thirty days.

Original signed by Master Pope

Master Lou Ann M. Pope
Case Management Master

Date: November 19, 2013