ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 05-CV-033236
DATE: 2014-02-14
BETWEEN:
Victoria Filanovsky
Plaintiff
– and –
Igor Filanovsky and Tatyana Filanovsky
Defendants
R. Mitchell Rowe, for the Plaintiff
J.L. Lee Mullowney, for the Defendants
HEARD: Via written submissions
REASONS ON COSTS
Madam Justice B. R. Warkentin
[1] In paragraph 78 of my Reasons for Judgment I directed the Defendants to provide written submissions on costs within 20 days and the Plaintiff to provide their submissions on costs within 10 days thereafter. I received the Defendants’ submissions on October 28, 2013. The Plaintiff did not make costs submissions.
[2] Counsel for the Defendants is seeking costs on a substantial indemnity basis in the amount of $145,000.00. Their total costs are $163,447.39.
[3] This case was bifurcated with only the issue of liability proceeding to trial and whether or not the Plaintiff’s claims would continue, depended upon my decision on that issue. I found that there was no liability by the Defendants for any of the claims made by the Plaintiff and as such the claims set out in the Statement of Claim were dismissed.
[4] There were three offers to settle by the Defendants. I was not provided information about any offers to settle by the Plaintiff. The first offer was made on April 20, 2012 in which the Plaintiff was offered a financial settlement by way of a transfer of property to her valued at $180,000.00. This offer was withdrawn on August 10, 2012 and replaced with a proposal that the Plaintiff withdraw her claims without costs. This offer was open until a motion that was heard on September 4, 2012. The same offer was made on June 6, 2013 and was open until the commencement of trial.
[5] The Plaintiff made serious allegations against the Defendants, her parents, alleging physical and psychological abuse and sought 1.2 million dollars in damages. The Defendants were put to significant financial and emotional expense to defend these allegations.
[6] In support of his claim for substantial indemnity costs, counsel for the Defendants commented that this case was one of significant complexity with a voluminous factual record and numerous legal issues that were diverse and complex. The Plaintiff served the Defendants with 25 expert reports during the course of these proceedings. She also produced medical records from close to 80 doctors and other health care providers and demanded production by the Defendants of historical records, which were produced by the Defendants at considerable cost to them.
[7] The subject matter was vitally important to the Defendants because of the allegations that they had abused the Plaintiff when she was a child, some 30 years prior to this litigation.
[8] In an attempt to limit the cost of the litigation, the Defendants agreed to proceeding with a bifurcated trial and to having some of the evidence of out of town witnesses and experts entered by way of affidavit. The Defendants were awarded their costs, in the cause of the motion that was argued on September 4, 2012.
[9] In Fong v. Chan,[^1] the Ontario Court of Appeal set out three fundamental purposes of modern costs rules:
a) to indemnify successful litigants for the cost of litigation;
b) to encourage settlements; and
c) to discourage and sanction inappropriate behaviour by litigants.
[10] Rule 57 of the Rules of Civil Procedure sets out the factors to be considered by a court when exercising its discretion under s. 131 of the Courts of Justice Act. The rule places emphasis on the result in the proceeding and any written offer to settle when considering the other factors enumerated in the rule.
[11] One of the main purposes of a costs award is to “compensate the successful party to the litigation for some of the legal expenses that party has incurred.”[^2]
[12] Finally, there is the overriding principle of reasonableness and the fundamental objective of preserving access to justice. The Ontario Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario[^3] stated that the fixing of costs does not begin nor end with the calculation of hours multiplied by rates. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case rather than an amount fixed by the actual costs incurred by the successful party.
Disposition
[13] After considering the result achieved by the Defendants as well as the particular circumstances in this case I award the Defendants costs in the amount of $120,000.00 inclusive of GST/HST and disbursements.
Madam Justice B. R. Warkentin
Released: February 14, 2014
COURT FILE NO.: 05-CV-033236
DATE: 2014-02-14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Victoria Filanovsky
Plaintiff
– and –
Igor Filanovsky and Tatyana Filanovsky
Defendants
REASONS ON COSTS
Madam Justice B. R. Warkentin
Released: February 14, 2014
[^1]: (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330
[^2]: Television Real Estate Ltd. v. Rogers Cable T.V. Ltd., 1997 999 (ON CA), [1997] O.J. No. 1944 (Ont. C.A.) at para. 24.
[^3]: 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)