SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NOs.: CV-12-455394 and CV-11-422391
MOTIONS HEARD: October 21, 2013

RE: Auto Maculate Inc., Philip Wahab and Stephanie Wahab v. Luigino Arcanti and Fousek Lenka and Alexander Arcanti and Rebecca Hall

Roy Wahab v. Luigino Arcanti a.k.a. Luigino Arconti a.k.a. Gino Arconti and Alexander Arcanti a.k.a. Alexander Arconti a.k.a. Flavio Arconti

BEFORE: MASTER R.A. MUIR

COUNSEL:
Nathaniel Erskine-Smith for the plaintiffs in both actions

Michael Katzman for the defendants in action no. CV-12-455394

Alexander Gillespie for the defendants and the proposed defendants in action no. CV-11-422391

ENDORSEMENT - COSTS

[1] This costs endorsement is made in connection with motions brought by the plaintiffs pursuant to Rules 5.04 and 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for orders granting them leave to amend their statements of claim. On November 15, 2013 I released my reasons for decision in which I granted the relief requested by the plaintiffs. I also asked for the parties’ costs submissions to be submitted in writing by December 13, 2013.

[2] I have now received costs submissions from the plaintiffs and the defendants in action no. CV-12-455394. I have not received any costs submissions from the defendants and the proposed defendants in action no. CV-11-422391.

[3] The plaintiffs seek their costs on a substantial indemnity basis. They argue that they have been entirely successful. They also take the position that the attendance before Master McAfee on May 14, 2013 was wasted due to the late delivery of responding material by the defendants. The plaintiffs also point to the transfer of property by the defendant Lenka Fousek on June 21, 2013 while this motion was pending, as a basis for substantial indemnity costs.

[4] The defendants in action no. CV-12-455394 take the primary position that there should be no costs of these motions. They argue that the May 14, 2013 adjournment was actually an indulgence granted to the plaintiffs and that the defendants should be credited for some costs as a result of that wasted appearance. They also submit that the plaintiffs have been given an indulgence by the court and that it was not unreasonable for the defendants to have opposed the plaintiffs’ motions.

[5] I agree with the defendants. In my view, the plaintiffs have been granted an indulgence. The plaintiffs should have been aware of the necessity of the proposed amendments by December 2011 at the latest. However, they waited until the spring of 2013 to bring these motions. This delay unduly complicated these motions by bringing discoverability issues into play that would not have been in issue had the plaintiffs acted more promptly. Given the potential discoverability arguments, the defendants’ opposition to these motions was not unreasonable. The plaintiffs have been granted an indulgence.

[6] For these reasons, it is my view that it is fair and reasonable that there be no order with respect to the costs of these motions.

Master R.A. Muir

DATE: December 23, 2013