SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-08-00367267-00
DATE: 20130226
RE: BARBARA ADAMSON
Plaintiff
- and -
YASMIN NAKHUDA for NLCI YOUR REAL ESTATE LAWYER CORPORATION and MAPLE TRUST COMPANY
Defendants
- and -
PATRICK ROMANN and BSM FINANCIAL COMPANY INC.
Third Parties
AND RE: MAPLE TRUST COMPANY
Plaintiff by Counterclaim
- and -
BARBARA ADAMSON and ANDREA ANTONETTE ADAMSON
Defendants by Counterclaim
BEFORE: Justice S. M. Stevenson
COUNSEL: Jane E. Sirdevan, for Yasmin Nakhuda For NCLI Your Real Estate Lawyer Corporation
Howard W. Reininger, for Maple Trust Company
Barbara Adamson and Andrea Adamson, Appearing in Person
DATE HEARD: November 29, 2012
ENDORSEMENT AS TO COSTS
[1] In my endorsement of December 14, 2012, I requested written submissions with respect to costs from the parties. The deadline for filing of the submissions was extended for Barbara Adamson and Andrea Adamson as requested, given Barbara Adamson was recovering from surgery. The costs submissions of Barbara Adamson and Andrea Adamson were submitted on February 14, 2013 and I have now had an opportunity to review all of the parties' submissions.
[2] The defendant, Yasmin Nakhuda For NLCI Your Real Estate Lawyer Corporation ("Ms. Nakhuda") was successful on the motion in that judgment was granted in accordance with the signed Minutes of Settlement, dated August 14, 2012 as requested in her Notice of Motion. Ms. Nakhuda is seeking costs on a substantial indemnity basis in the amount of $6,440.87, inclusive of disbursements and HST, as she contends that the Barbara Adamson and Andrea Adamson made a baseless attempt to resile from the settlement that was reached by the parties and this necessitated the motion. In the alternative, Ms. Nakhuda seeks costs on a partial indemnity scale in the amount of $5,517.09, inclusive of disbursements and HST given her success on the motion.
[3] The defendant, Maple Trust Company, seeks costs from Barbara Adamson and Andrea Adamson in the amount of $3,390, inclusive of HST on a substantial indemnity basis, as it contends that the conduct of the Barbara Adamson and Andrea Adamson in attempting to resile from the Minutes of Settlement warrants substantial indemnity costs. In the alternative, it submits that it is entitled to costs on a substantial indemnity basis pursuant to the terms of the Charge and Standard Charge Terms on its mortgage.
[4] Barbara Adamson and Andrea Adamson submit that they are seeking costs in the amount of $2,615 from Mr. Cook who is counsel for Ms. Nakhuda. They contend that Mr. Cook and his office failed to communicate the intended payments of the settlement to them which caused unnecessary costs for this motion. They submit that a letter of explanation from Mr. Cook would have clarified the issues.
[5] As indicated, as a result of the motion, judgment was granted in accordance with the signed Minutes of Settlement dated August 14, 2012. In my endorsement of December 14, 2012, I found that from a review of the correspondence sent by Barbara Adamson on or about August 29, 2012 to counsel for the other parties and to the mediator Mr. Morris, she and Andrea Adamson were trying to resile from the settlement reached at mediation. This motion would have been unnecessary had Barbara Adamson and Andrea Adamson signed the Final Releases sent to them. It is clear from a review of the materials filed for the motion and submissions made at the hearing of the motion, that there has been difficulty with this litigation from the outset and that there is significant animosity between the parties. It is extremely unlikely that this matter would have been resolved had a motion not been brought. Unnecessary costs have been incurred by both Ms. Nakhuda and Maple Trust Company.
[6] As stated in Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.) at para. 26, with respect to costs: "… The objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in that particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant." As also stated in Boucher, the fixing of costs is not a mechanical exercise and does not begin and end with the calculation of hours times rates.
[7] In assessing costs, I have considered what Barbara Adamson and Andrea Adamson, as the unsuccessful parties, would have reasonably expected to pay if they were unsuccessful on the motion. I have also taken into consideration the factors set out in Rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 that the court may consider when exercising its discretion in awarding costs, and the costs submissions of all parties.
[8] I have reviewed the hours spent by counsel for Ms. Nakhuda on this motion, and I am concerned that there is some duplication in the hours given there were three lawyers involved with the preparation of the motion as well as a litigation law clerk. There were no detailed dockets provided outlining the specific tasks completed by various members of the firm. I do consider that the total time spent with respect to preparation of the motion of 28.9 hours is excessive with respect to the relief sought. With respect to the costs sought by Maple Trust Company, I note that the Bill of Costs claims three hours for attendance on the motion which I would reduce given the actual motion itself was approximately one hour.
[9] Taking all of this into consideration, I order that Barbara Adamson and Andrea Adamson pay costs to Ms. Nakhuda in the amount of $3,500, inclusive of HST and disbursements and that this amount be set off from the $25,000 owing to Barbara Adamson and Andrea Adamson from Ms. Nakhuda. I also order that Barbara Adamson and Andrea Adamson pay costs to Maple Trust Company in the amount of $1,800, inclusive of HST and disbursements forthwith.
[10] I find that these amounts are fair and reasonable for Barbara and Andrea Adamson to pay and amounts that they could have reasonably expected to pay if unsuccessful on the motion.
Stevenson J.
DATE: February 26, 2013