SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ELGNER v. FREEDMAN

2014 ONSC 592

COURT FILE NO.: CV-12-451862

BEFORE: MASTER R.A. MUIR

COUNSEL: M. Solmon and J. Hannaford for the plaintiff/moving party

M. Kestenberg and A. Hershtal for the defendants/responding parties

HEARD: November 15, 2013

ENDORSEMENT - COSTS

[1] This costs endorsement arises out of a motion brought by the plaintiff seeking answers to questions refused on several examinations carried out in connection with a pending motion for particulars brought by the defendants. A few of the issues on the motion were resolved prior to the hearing date. However, a great number of questions remained in dispute and were the subject of extensive argument.

[2] On December 11, 2013 I released my endorsement. I concluded that the defendants did not have to answer any of the disputed questions and dismissed the plaintiff’s motion. My endorsement also requested written costs submissions. I have now received and considered those submissions.

[3] The defendants seek their partial indemnity costs in the amount of $13,625.83. The plaintiff submits that $6,500.00 plus HST is fair and reasonable in the circumstances.

[4] The court’s general authority to award costs as between parties to litigation is found in section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which provides that costs are in the discretion of the court. Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) sets out a non-exhaustive list of factors the court is to consider when awarding costs. Rule 1.04(1.1) is also applicable. It requires the court in applying the Rules to make orders that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding.

[5] When dealing with costs, the overall objective for the court is to fix an amount that is fair and reasonable for the unsuccessful party who generally must pay the costs of the successful party. See Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 (C.A.) at paragraph 4 and Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.) at paragraph 26. In Clarington (Municipality) v. Blue Circle Canada Inc., 2009 ONCA 722 the Court of Appeal stated as follows at paragraph 52:

Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.

[6] These are the factors and principles I have considered and applied in determining the costs issues on this motion.

[7] The defendants have been entirely successful. They are entitled to their partial indemnity costs. The amount requested by the defendants should come as no surprise to the plaintiff. Her costs outline identified partial indemnity costs of $31,270.44 for the motion.

[8] Extensive material was delivered in connection with the motion. It took most of the day to argue. The issues were obviously important to the defendants as the plaintiffs were seeking access to the contents of almost all of the files kept by the defendants’ lawyers. In my view, the costs claimed by the defendants are, for the most part, fair and reasonable in the circumstances.

[9] However, I do agree with the plaintiff that a modest reduction should be made for the unspecified time spent by the defendants’ lawyers responding to undertakings.

[10] I have therefore concluded that it is fair and reasonable for the plaintiff to pay the defendants’ partial indemnity costs of this motion fixed in the amount of $12,000.00, inclusive of HST and disbursements, payable within 30 days.

Master R.A. Muir

DATE: January 24, 2014