ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: C-883-10
DATE: 2014-2-20
B E T W E E N:
PAUL DENOMME
Clarke L. Melville, for the Plaintiff, Paul Denomme
Plaintiff
- and -
KELLY JANE DENOMME (In Default) and COREY WILSON MCARTHUR
Anna L. Towlson, for the Defendant, Corey Wilson McArthur
Defendants
Corrected decision: The correction was made on August 22, 2014.
The citation contained the word “and” and this was replaced with “v.”
As well, the date in the citation was listed as 2014-25-20 and this was changed to 2014-02-20.
COSTS RULING
PARAYESKI, J.
[1] The plaintiff is the father of the defendant Kelly Jane Denomme. She is, or was, married to the defendant Corey Wilson McArthur. She and he separated in 2010.
[2] The action related to three loans allegedly made to the defendants by the plaintiff when the former were together as a couple. Prior to trial, Kelly Denomme admitted liability and consented to judgment going against her. The defendant Corey Wilson McArthur denied liability throughout, asserting that the loans were either utterly fictitious or were gifts, and that the claim against him was merely tactical to give advantage to his co-defendant in the course of their own matrimonial litigation.
[3] The trial of this action was heard at the commencement of the trial of that matrimonial litigation. My decision was that Mr. McArthur was jointly liable together with Ms. Denomme for two of the three loans.
[4] The principal amount owing on the two allowed claims was $89,413.00. The principal of the disallowed claim was $6,808.63. Thus, the plaintiff was largely successful in his action against Mr. McArthur, and I see no reasonable basis upon which to deviate from the notion that costs are usually owed by an unsuccessful litigant to a successful one.
[5] The plaintiff served a formal Rule 49 offer to settle on January 6, 2011. The trial result was such that the offer ought to have been accepted by Mr. McArthur. The plaintiff seeks his costs, on the partial indemnity scale up to the date of that offer, and on the substantial indemnity scale thereafter. Those costs are submitted at $5,781.97, inclusive of disbursements and taxes, up to the offer, and $82,307.40, also inclusive of disbursements and taxes, thereafter. The costs requested total $88,089.37. As an alternative, the plaintiff seeks his costs on the partial indemnity scale throughout, fixed at $60,568.20.
[6] Either amount initially appears to be disproportionate to the amounts claimed. That said, it was Mr. McArthur’s choice to turn what should have been a one or two day trial into one that took up roughly five and one half days. He accomplished this by steadfastly denying liability in the face of potent evidence (such as a signed promissory note in the case of the $70,000.00 loan), and failing to make reasonable concessions where the same were warranted. Of course, such an approach is a litigant’s prerogative, but it is one that comes at a price. That price can, and often is, being exposed to paying costs that are at first blush at least, disproportionate to the amounts at issue.
[7] I have reviewed the costs breakdown provided by counsel for the plaintiff which seeks to rationalize the costs being claimed. I am of the view that some of the docketed time expended is slightly excessive. The hourly rates being charged by counsel and someone who I presume to be a law clerk are not set out plainly, or at all. The disbursements appear to be reasonable.
[8] Taking all of this into consideration, I fix the plaintiff’s costs, payable by Mr. McArthur to him, at $70,000.00 all inclusive.
PARAYESKI, J.
Released: February 20, 2014
COURT FILE NO.: C-883-10
DATE: 2014-2-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
PAUL DENOMME
Plaintiff
- and –
KELLY JANE DENOMME (In Default) and COREY WILSON MCARTHUR
Defendants
RULING
PARYESKI, J.
MDP:mw
Released: February 20, 2014