Mariani v. The Corporation of the Township of Puslinch et al., 2014 ONSC 3190

SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 368/12

DATE: 20140604

RE: SHARON ANN MARIANI

and

THE CORPORATION OF THE TOWNSHIP OF PUSLINCH and MUNICIPAL PROPERTY ASSESSMENT CORPORATION

BEFORE: Justice D.L. Edwards

COUNSEL:
Ana Towlson, for the Plaintiff

W.H. Peter Madorin, for the Defendant, The Corporation of the Township of Puslinch

Donald G. Mitchell, for the Defendant, Municipal Property Assessment Corporation

AMENDED COST ENDORSEMENT

1On April 28, 2014, I granted the defendants’ motion and dismissed the plaintiff’s action with costs if demanded. My endorsement stated that the defendants shall provide their submissions on costs within 15 days; the plaintiff shall provide her submissions within seven days thereafter, with reply submissions, if any, within four days thereafter. Further, if I did not receive submissions according to the above timetable I would conclude that the cost had been settled or not requested.

2Within the timetable, I received cost submissions from the Corporation of the Township of Puslinch (“Township”). I did not receive submissions from the defendant, Municipal Property Assessment Corporation (“MPAC”), nor did I receive reply cost submissions from the plaintiff.

3On May 27, 2014, I released my cost endorsement.

4Subsequently, I received the cost submissions from the MPAC, together with an affidavit of service noting that the plaintiff and the Township had been served by regular mail on Friday, May 2, 2014.

5There is some disagreement as to whether the plaintiff was served at her counsel’s most recent address. The plaintiff advises that this did not occur and this was the reason that no reply submissions were provided. Although the Township submits that it properly served the plaintiff, it takes the position that, as a matter of fairness, the plaintiff should be entitled to reply.

6I am satisfied that it is an appropriate situation for me to consider the reply submissions of the plaintiff, and to also consider the cost submissions of MPAC.

7In my cost endorsement of May 27, 2014, I ordered the plaintiff to pay the Township costs in the amount of $23,400. The plaintiff objects to the amount of costs that the Township seeks, submitting that they are excessive.

8The plaintiff submits that the Township has included costs of the motion heard previously, and for which costs were already awarded. The Township agrees that this is duplication and that the costs claimed should be reduced by the sum of $1,137.50.

9The plaintiff further submits that the Township’s partial indemnity rate is very close to the full indemnity or actual fees paid. I accept the authorities cited by the Township in support of its submission on this issue.

10I am satisfied that the hours claimed by the Township’s counsel and clerk are appropriate considering the materials provided by the plaintiff.

11The plaintiff submits that the cost award is with respect to a half day long motion. I disagree. The costs awarded by me relate to the entire action.

12The plaintiff urges me to consider the financial situation of the plaintiff. I am satisfied that the impecuniousness of the plaintiff is not a factor that I should take into consideration in determining costs.

13Accordingly, I vary my cost endorsement of May 27, 2014 by reducing the amount ordered by the sum of $1,137.50. As a result, I order that the plaintiff pay to the Township costs in the amount of $22,262.50 fixed, all inclusive.

14MPAC seeks costs of the motion and action of $14,000 on a partial indemnity basis from the plaintiff. This amount is broken down as $13,571.84 for fees and $428.16 for disbursements.

15The plaintiff objects to the cost sought by MPAC on the basis of the excess hours spent reviewing the plaintiff's application and statement of claim, namely 23.5 hours.

16The plaintiff initially commenced the proceeding by notice of application. The record was approximately two inches thick. The plaintiff subsequently served a 77 paragraph statement of claim covering events from 1991 until 2007. That fee item also includes time spent by MPAC’s reviewing its own documents related to the events described in the statement of claim.

17I am satisfied that the time spent by MPAC’s counsel is appropriate, as is the hourly rate charged.

18I order that the plaintiff pay to MPAC costs in the amount of $14,000 fixed, all-inclusive.

Edwards J.