Superior Court of Justice - Ontario

COURT FILE NO.: 11-30726

DATE: 2014-04-10

RE: NADINE DELSORDO and CHRISTINA HYACINTH, Plaintiffs

AND:

THE ESTATE OF JOHN FEDYK, Defendant

BEFORE: The Honourable Mr. Justice D.A. Broad

COUNSEL:
A. Malcolm, for the Plaintiffs

S. Wood, student-at-law for the Defendant

COSTS ENDORSEMENT

[1] The parties have not been able to agree on costs and have now delivered their respective submissions on costs, as directed in my Endorsement released March 5, 2014. The following is my disposition with respect to the costs of the motion.

[2] The parties each seek costs against the other, arguing that they were more successful on the motion and that their position was the more reasonable one. The plaintiff, the responding party on the motion, presents a Bill of Costs setting forth a fee component of $7,625.00, disbursements of $213.12 and HST, for a total of $8,857.08. Notwithstanding this, the plaintiff seeks an award of costs of $3,000.00.

[3] The defendant, the moving party, states that it enjoyed partial success and seeks entitlement to $2,000 to $2,500 in costs to reflect this partial success.

[4] The parties appear to have engaged in a lengthy and involved exchange of correspondence respecting compliance with undertakings and production of documents, as well as alleged unfulfilled or tardy responses by the defendant to requests by the plaintiff for reimbursement of duplicating costs for documents which were produced.

[5] The defendant did enjoy some success on the motion, in that the plaintiffs agreed to satisfy the outstanding undertakings conditional on the defendant reimbursing it for the duplication costs, to produce the counselling records of the plaintiff Delsordo requested by the defendant, and to request Walmart to produce the incident report on the slip and fall of the plaintiff Delsordo at the expense of the defendant and was ordered to provide a direction to Dr. Punthakee to produce a legible copy of his report to the defendant at the defendant’s expense. However, I am satisfied that the necessity for the motion on these matters could well have been avoided had the defendant adopted a more straight-forward approach to the matters and to reimbursement for the legitimate costs of the plaintiff in providing the documentary production requested by the defendant. It is evident that the plaintiffs were not ignoring its responsibilities to provide required documentary disclosure but rather was attempting to respond to the defendant’s requests appropriately and in a timely fashion.

[6] The plaintiffs were the successful parties on the one aspect of the motion which was required to be argued, relating to production of the Facebook profile of the plaintiff Hyacinth. As such, they are entitled to costs, but in a reduced amount to reflect the divided success.

[7] I find the plaintiff’s proposal respecting costs providing for payment to them of the sum of $3,000 all-inclusive to be reasonable in all of the circumstances.

[8] It is therefore ordered that the defendant pay costs of the motion to the plaintiffs, fixed in the sum of $3,000, inclusive of fees, disbursements and HST. Payment is to be made within 30 days hereof.

D. A. Broad, J.

Date: April 10, 2014