COURT FILE NO.: CV-13-489949

DATE: 20140625

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Theodoros Maras and Chrisoula Sourasis, Applicants

– AND –

George Milianis, Respondent

BEFORE: Justice E.M. Morgan

COUNSEL:
Nicolas Canizares, for the Applicants

Duncan Boardman, for the Respondent

HEARD: June 5, 2014, with written submissions on costs

COSTS ENDORSEMENT

[1] On June 6, 2014 I issued my endorsement in this matter. In my endorsement I requested written submissions on costs, and have now received those submissions from counsel for both parties.

[2] Each of the parties served on the other an offer to settle prior to the hearing of the application. The Respondent’s offer to settle, while meeting the Applicants’ relief part way, was not a better resolution from the Applicants’ perspective than what they received in my endorsement. Likewise, the Applicants’ offer, while close to the results articulated in my ruling of June 6th, differed in a number of details and would have imposed certain costs on the Respondent that were not imposed in my endorsement.

[3] Accordingly, Rule 49 of the Rules of Civil Procedure does not impact on the costs analysis in this matter. The Applicants were the successful party, and they deserve their costs on a partial indemnity scale.

[4] The Applicants have submitted a Costs Outline setting out their costs on a partial indemnity scale at just over $31,500, including disbursements and tax. The Respondent has made submissions on costs, but has not indicated what his partial indemnity costs would have been had he been the successful party.

[5] Counsel for the Respondent has submitted that if I am inclined to “order payment of all or somewhat more than a nominal amount to the Applicants my client requests that he be given the opportunity to have Mr. Canizares bill of costs assessed.” He has not, however, provided me with any reason for assessing the costs.

[6] The Respondent’s position is that his offer was close to, but did not quite match, the results obtained in my ruling. That, however, is something for a judge to consider in exercising the discretion given to the motions judge in Section 131 of the Courts of Justice Act. It is not a reason to send the question of costs to an Assessment Officer, who would typically examine hourly rates and number of hours, but not substantive factors relating to the ruling itself.

[7] The Respondent has expressed no objection to the billing rate or hours reflected in the Applicants’ Costs Outline. Likewise, no objection has been expressed to the disbursements outlined by Applicants’ counsel.

[8] A number of factors to be considered in exercising the motion judge’s discretion in awarding costs are set out in Rule 57.01 of the Rules of Civil Procedure, including the principle of indemnity for the successful party, the complexity of the matter, and the expectations of the unsuccessful party. Overall, the court is required to consider what is “fair and reasonable” in fixing costs, having regard to perspective of all of the parties: Boucher v Public Accountants Council (Ontario) (2004), 2004 14579 (ON CA), 71 OR (3d) 291 (Ont CA), at para 26.

[9] In my view, the Applicants’ request is reasonable, and reflects what the parties to this Application might reasonably have expected to pay in the event that the other was successful.

[10] The Respondent shall pay the Applicants $31,500 in costs, inclusive of all disbursements and HST.

Morgan J.

Date: June 25, 2014