Court File and Parties

COURT FILE NO.: CV-10-00409967

DATE: 2013-12-09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Diane Furgiuele, Plaintiff

– AND –

Don Casselman Global Enterprises and Casselman Global Enterprises Inc., Defendants

BEFORE: E.M. Morgan J.

COUNSEL:
David Seed, for the Plaintiff

Philip B. Morrissey, for the Defendants

HEARD: October 23, 2013, with written submissions on costs

COSTS ENDORSEMENT

[1] I released my endorsement in this motion on November 13, 2013. At that time I requested written submissions on costs from the parties. Both counsel have now provided me with their submissions.

[2] Mr. Morrissey, on behalf of the Defendants, submits that the Defendants were successful in the motion and that they should therefore have their costs. He requests costs on a partial indemnity scale, broken down as follows: fees ($15,707.50), disbursements ($2,041.97), and HST ($2,103.00).

[3] Mr Seed, on behalf of the Plaintiff, submits that while the Defendants were successful on the motion, the effect of my endorsement was to save Mr. Morrissey from his own error and that costs should therefore not be borne by the Plaintiff. Mr. Seed suggests that the Plaintiff herself should receive costs despite her lack of success on the motion, since it was reasonable to bring the motion in the first place. He has provided me with a Bill of Costs indicating that his own costs on a partial indemnity basis are broken down as follows: fees ($9,856.25), disbursements ($597.20), and HST ($1,281.25).

[4] In my view, the motion was at least partially brought on by Mr. Morrissey’s own error, and so despite being entirely successful in the motion the Defendants should not be awarded all of the costs that Mr. Morrissey requests. That said, the essence of my endorsement on the motion was that the summary judgment motion was not well conceived in the first instance. The Plaintiff does not deserve any costs for having brought and lost that motion. There was little merit to it.

[5] Mr. Seed also submits that the Defendants’ costs are excessive. He has asked for a total of $11,734.70, while Mr. Morrissey has asked for a total of $19,852.47.

[6] I would reduce the fees that Mr. Morrisey claims in his costs request to the level of fees that Mr. Seed indicates that he incurred on behalf of his own client. In addition to fees and applicable HST, the Defendants should recover the full amount of the disbursements detailed on Mr. Morrisey’s Bill of Costs.

[7] Accordingly, the Plaintiff shall pay the Defendants costs of the motion broken down as follows: $9,850.00 for fees, $2,041.97 for disbursements, and $1,280.20 for HST. That makes for a total amount of $13,171.97 to be paid by the Plaintiff to the Defendants. This amount is to be paid within 30 days of the date of this costs endorsement.

Morgan J.

Date: December 9, 2013