ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 49741/07
DATE: 2014/04/16
BETWEEN:
DAVE IRONSIDE
Plaintiff
– and –
KAREN DELAZZARI AS EXECUTOR OF THE ESTATE OF ANTHONY DELAZZARI
Defendant
Alan J. Butcher, for the Plaintiff
Luigi De Lisio, for the Defendant
The Honourable Mr. Justice D.J. Taliano
COSTS ENDORSEMENT
[1] In this proceeding, following a four day trial, the plaintiff recovered a judgment of $126,218 on February 19, 2014. Costs were reserved for further submissions which I have now received in writing.
[2] The plaintiff had delivered an Offer to Settle on October 17, 2013 which offer remained open for acceptance until after the commencement of trial pursuant to Rule 49.10 of the Rules of Civil Procedure. The plaintiff offered to settle the action for $25,000 inclusive of costs and applicable taxes. This was an extraordinarily attractive offer which was never accepted by the defendant’s representatives.
[3] The plaintiff now seeks costs of $60,030 plus HST for fees, plus disbursements of $4,941.15 inclusive of HST. The amount sought for fees is broken down as follows. The plaintiff’s fees to October 17, 2013 calculated on a partial indemnity basis total $25,350. They total $35,490 on a substantial indemnity basis. The plaintiff is proposing to recover fees of $30,000 on a blended partial/substantial indemnity scale for this period on the grounds that at some point before the date of the Offer to Settle, the defendant should have been aware that his defence had no merit, that the plaintiff was continuing to suffer damages by reason of the defendant’s defamation and that the defendant was liable to the plaintiff for the damages he was suffering.
[4] My response to this submission is that the plaintiff was awarded substantial damages which included punitive and aggravated damages to compensate him for the defendant’s wrong doing and there is no justification to further punish the defendant for his misconduct. The costs to October 17, 2013 will be awarded on a partial indemnity scale.
[5] That being said, the plaintiff is clearly entitled to substantial indemnity costs after October 17, 2013 given the terms of his Offer to Settle, the amount of the judgment and the operation of Rule 49.10(1) of the Rules.
[6] With regard to quantum, I have examined the plaintiff’s bill of costs and find that the hours logged are reasonable as are the rates charged. I say that because this was a fairly complex piece of litigation and liability was denied throughout even though the defendant called no evidence to justify or explain his conduct. The plaintiff was required to prove every aspect of his claim and he did so. It perhaps took longer than might otherwise have been expected but without any admissions of liability, the plaintiff was entitled to produce both the video and digital evidence he presented to ensure the court had a complete understanding of the extent of the damage done to the plaintiff’s property since the damage was not admitted.
[7] It is also true, as the defendant alleges, that the action took a long time to prosecute and in fact was administratively dismissed at one point. Although it has not been specifically demonstrated that the defendant incurred costs by reason of the plaintiff’s delays, I am prepared to accept and take into account, that there would have been some duplication of defence expenses by reason of these delays.
[8] It is also lamented that the defendant died before he had a chance to defend himself in this action. Certainly, it is unfortunately true that the defendant did pass away prematurely. However, it has not been demonstrated how his death prejudiced his case. His planning and execution of the break-in was video recorded. It was a criminal act that attracted a criminal charge to which he pled guilty. Even though this action should have proceeded as an assessment of damages, liability was denied which unnecessarily prolonged the trial. Such an unreasonable stance on the part of the defendant’s representatives should not be at the plaintiff’s expense.
[9] I cannot agree with the defence submissions that the defendant enjoyed some success in that the plaintiff did not recover the amount he sought of $245,000. I disagree. The plaintiff’s judgment vastly exceeded the terms of his offer and that is how success is measured. In addition, the submission that the case did not draw any attention other than as between the parties was demonstrated during the trial to be untrue. The defamation was widely circulated on the internet and destroyed the plaintiff’s business. This was no trifling matter and the damage award reflected that fact.
[10] Under the circumstances and pursuant to the provisions of Rule 57.01(1), and bearing in mind the principle of proportionality, I fix the plaintiff’s costs in the sum $50,000 plus HST. I also award disbursements of $4,941.15 inclusive of HST, payable forthwith.
[11] With respect to interest, I agree that the delays in prosecuting the action on the part of the plaintiff disentitle him to interest in the early stages of the litigation with respect to items 1 and 2. Accordingly, interest will run from October 28, 2009 when the matter was restored to the trial list.
[12] With respect to item 3, interest should run from the date the action was commenced given the fact that the defamation was never withdrawn and neither the defendant nor his representatives ever apologized for the defendant’s conduct, not even at trial. In addition, the plaintiff had to endure a reliving of the traumatic events visited on him by the defendant during this trial. It is difficult to have any sympathy for the defendant given his behaviour throughout this whole sorry episode.
[13] Interest will run on items 5 and 6 from October 1, 2012 as proposed by both counsel. No interest is payable with respect to items 4 and 7.
[14] In the event that an order is necessary to dispose of the counterclaim as a housekeeping matter, it is so ordered. If there are any other housekeeping matters that need to be addressed, the court should be spoken to within the next 10 days through the local trial coordinator.
Taliano J.
Released: April 16, 2014
COURT FILE NO.: 49741/07
DATE: 2014/04/16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DAVE IRONSIDE
Plaintiff
– and –
KAREN DELAZZARI AS EXECUTOR OF THE ESTATE OF ANTHONY DELAZZARI
Defendant
COSTS ENDORSEMENT
Taliano J.
Released: April 16, 2014