Superior Court of Justice - Ontario

COURT FILE NO.: 11-28421

DATE: 2014-01-24

RE: Crystal Young, Plaintiff

AND:

Rebecca Comay and Bradley Young, Defendants

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

COUNSEL:
Jeffrey Crannie, for the Plaintiff

Gregory P. Mallia, student at law, for the Defendant Rebecca Comay

costs ENDORSEMENT

[1] The parties have been unable to resolve the question of costs by agreement and accordingly, they have now delivered their submissions on costs. The following is my disposition with respect to the costs of the motion.

[2] In my view, the defendant was justified in bringing the motion for compliance with undertakings given on discovery and in respect of refusals on discovery. Argument of the motion was adjourned four times to permit the plaintiff to a complete fulfillment of her undertakings.

[3] The major issues for argument related to the production by the plaintiff of pre-accident and post-accident photographs of her, access to her Facebook profile and wall and a requirement that she submit to a bone scan were largely decided in favour of the defendant.

[4] Although the defendant cast a broader net for disclosure of photographs than was ordered, if the plaintiff had agreed to produce the categories of photographs which were ordered, that issue would have been easily resolved.

[5] As the successful party on the motion, the defendant is entitled to costs.

[6] Rule 57.01(1) sets forth various factors which the Court may consider, in addition to the result in the proceeding and any offer to settle made. These factors include the principle of indemnity, including the experience of the lawyer for the party entitled to costs, the rates charged and the hours spent by that lawyer (57.01(1)(0.a)), and the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed (57.01(1)(0.b)).

[7] As pointed out by the Court of Appeal in the case of Boucher v. Public Accountants Council (Ontario) 2004 14579 (ON CA), 2004, 71 O.R. (3d) 291, at para. 26, the overriding consideration on the fixing or assessment of costs as between parties to litigation is what is fair and reasonable for the unsuccessful party to pay, rather than an amount fixed by the actual costs incurred by the successful party.

[8] The plaintiff does not take issue with the rates charged by the Counsel and the student-at-law which were involved in the motion on the part of the defendant, but suggests that the hours claimed are excessive. Unfortunately, the plaintiff did not provide her own Costs Outline making it very difficult to gauge what her reasonable expectations were with respect to her liability for costs in the event that she were unsuccessful on the motion.

[9] Although the number of hours spent on the motion on behalf of the defendant, as set forth in her Costs Outline, appear to be on the high side, in the absence of a Costs Outline from the plaintiff, I am unable to find that it is unreasonable or excessive.

[10] It is therefore ordered that the plaintiff pay costs to the defendant Rebecca Comay fixed on a partial indemnity basis in the sum of $3,272.92 inclusive of fees, disbursement and HST. This amount is to be paid forthwith.

D. A. Broad J.

Date: January 24, 2014