Court File and Parties

COURT FILE NO.: CV-06-0250

DATE: 20140214

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HEATHER CICINSKI and JOHN CICINSKI, Plaintiffs

AND:

HER MAJESTY THE QUEEN IN THE RIGHT OF THE PROVINCE OF ONTARIO, REPRESENTED BY THE MINISTER OF TRANSPORTATION FOR THE PROVINCE OF ONTARIO, THE CORPORATION OF THE TOWN OF WASAGA BEACH, DILLON CONSULTING LIMITED and FERMAR PAVING LIMITED, Defendants

AND:

THE CORPORATION OF THE TOWNSHIP OF CLEARVIEW, Third Party

BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY

COUNSEL:
T. Thamarappallil, for the Plaintiffs

M. Coleman and J. Longo for the Defendant Fermar Paving Limited (Moving Party)

HEARD: By written submissions

costs ENDORSEMENT

[1] This endorsement on costs follows this court’s ruling on the motion for summary judgment brought by Fermar Paving Limited (“Fermar”) and granted by this court on January 20, 2014. The plaintiffs’ action against Fermar was dismissed in its entirety (Cicinski v. Ontario (Minister of Transportation), 2014 ONSC 443).

[2] Fermar seeks costs of the motion and action on a partial indemnity scale and payable forthwith. Throughout the litigation Fermar was represented by two sets of counsel; each have submitted separate Bills of Costs and seeks one-half of the total fees and disbursements set out therein. Specifically, Forbes Chochla LLP on behalf of Fermar seeks the sum of $11,879.04 including disbursements for the costs of the action. A further amount of $19,407.08 including disbursements is being sought for the motion.

[3] McCague Borlack LLP seeks costs of the action on a partial indemnity basis in the amount of $23,363.42 including disbursements.

[4] The plaintiffs seek an order that each party bear their/its own costs, for these reasons: 1) the plaintiffs’ financial straits; 2) that the claim against Fermar was commenced out of excessive caution; 3) they continue to believe Fermar is responsible for their losses; and 4) their former counsel did not plead additional flooding dates, causing them prejudice on the motion and in the action.

[5] Dealing with each of these arguments in turn, impecuniosity cannot be used in a circumstance such as this where the plaintiffs must be assumed to know the risks of proceeding with their claim, but chose to accept that risk. Fermar has been put to expense as a result of that decision. I agree with the comments of Mcdonald, J. in Robb v. St. Joseph’s Health Care Centre, [1999] O.J. No. 1461 at para. 7, and of Southey, J. [Hartt, J. concurring] in Meyers v. Marks (1995), 1995 11086 (ON SCDC), 125 D.L.R. (4th) 184 (Ont. Div. Ct.) at pp. 189-90, adopted by Leitch, J. in Westerfelt v. Frappier Estate, [1999] O.J. No. 267 (Gen. Div.) at para. 9, that a party’s impecuniosity should not be taken into account in determining costs.

[6] The claim against Fermar might have been commenced out of excessive caution, but faced with a motion for summary judgment and its potential cost risk, the plaintiffs elected to continue the claim in the face of insufficient evidence to be successful at trial. Along the way, the plaintiffs could have re-evaluated the strength of their case at any point before the costs rose to the current level.

[7] Costs should not be avoided as a result of the plaintiffs’ belief that their claim had merit. The plaintiffs in their cost submissions attempted to re-argue the motion, causing Fermar to have to respond to the same arguments once again. The plaintiffs have appeal rights if they believe the decision of this court is in error.

[8] Finally, the requested amendment to the pleading was not dealt with in a formal or timely manner. There was no motion before the court, nor any explanation provided as to why the amendment was not sought at an earlier date. If the additional flooding events were crucial to the lawsuit and sufficiently important to alter the evaluation on a summary judgment motion, the amendment should have been sought well in advance, potentially avoiding the summary judgment motion.

[9] Turning to the factors set out in Rule 57.01(1), there is no explanation from Fermar as to why the court should find it reasonable for two sets of counsel to be retained. Their respective Bills of Costs suggest that there is an overlap in work done by each firm, right from the pleadings stage. In terms of the plaintiffs’ expectation of what they could reasonably pay as a losing party, it is not sufficient to simply divide the Bills of Costs in half. Duplication of work may still result in unnecessary costs. For example, preparing for and attending on examinations for discovery was undertaken by both firms. A total of 197 hours of work is documented between the firms, and this does not include prior document production. It is difficult to conceive how this much time could be required. Even taking into account the amount claimed by the plaintiffs of $1M plus special damages and interest, and the number of years in which Fermar has been engaged in the lawsuit, the number of total hours billed at all stages of the litigation is excessive.

[10] Prior to the motion, the action took the ordinary course of pleadings, correspondence, document production and examinations for discovery. There is no allegation or evidence that the plaintiffs prolonged or unnecessarily complicated the litigation, other than the initial failure to give particulars of the allegations against Fermar in the Statement of Claim. However, the action has been ongoing against Fermar for over six years, and the plaintiffs have not alleged that Fermar is responsible for any delay. Given the nature of the construction project and the number of defendants, it is recognized that the documents are voluminous.

[11] Taking into account each firm’s Bill of Costs, the complexity of the action and its duration, the outcome of the motion and the plaintiffs’ reasonable expectations, in the court’s view a reasonable amount for costs of the action is $25,000 inclusive.

[12] Rule 57.03(1) provides that a court shall fix the costs of a contested motion and order them to be paid within 30 days unless the court is satisfied that a different order would be more just.

[13] In the previous section of this endorsement, the reasons for declining to accept the entreaties of plaintiffs’ counsel to make no order as to costs were discussed. To this can be added the fact that when opposing the motion for summary judgment, it was incumbent upon the plaintiffs to take a good, hard look at the evidence (or lack thereof) supporting their claim against Fermar. It can only be assumed that this was done, and that in deciding to contest the motion the plaintiffs accepted the risk of being faced with a cost order if they were unsuccessful in opposing the motion.

[14] Fermar seeks costs of $19,407.08 for the motion on a partial indemnity basis.

[15] The court concurs with points made by counsel in its Costs Outline: the amount of the claim required a significant response and effort to be put into the motion, and the plaintiffs’ attempts to amend the Claim on the date of the motion increased its complexity, duration, and the amount of preparation time required.

[16] Again, the plaintiffs’ reasonable expectation for what they could be required to pay as the losing party must be taken into account. In the court’s view the amount sought for the motion falls within a reasonable range, and therefore an amount within this same range can be expected to have been conveyed to the plaintiffs by their counsel as part of the risk assessment of this motion. The amount sought is being reduced slightly to account for possible overlap between costs of the motion and costs awarded for the action.

[17] This court orders:

i. The plaintiffs shall pay costs of the motion for summary judgment to Fermar fixed in the amount of $15,000 inclusive, within 30 days.

ii. The plaintiff shall pay costs of the action to Fermar fixed in the amount of $25,000 inclusive.

HEALEY J.

Date: February 14, 2014