OSHAWA

COURT FILE NO.: CV-12-80971-SR

DATE: 20141128

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 1628612 ONTARIO LIMITED, Plaintiff/Defendant by Counterclaim

AND:

MIRIAM PICKERING, Defendant/Plaintiff by Counterclaim

BEFORE: THE HON. MR. JUSTICE P.A. DOUGLAS

COUNSEL: Brianne L. Simionati, Counsel, for the Plaintiff/Defendant by Counterclaim

Clinton V. Ellis, Counsel, for the Defendant/Plaintiff by Counterclaim

HEARD: by written submissions

ENDORSEMENT ON COSTS

[1] This is my decision on the issue of costs resulting from my reasons for decision on the Plaintiff’s Motion for summary judgment dated July 22, 2014.

[2] First, on consent, my reasons for decision are amended to correct arithmetical errors such that the principle amount of the judgment shall be in the sum of $29,445.56 rather than $27,445.56.

[3] I have reviewed the parties’ submissions on costs and thank counsel for same.

[4] The Plaintiff seeks costs on a substantial indemnity basis in the amount of $18,070.23 inclusive of HST but net of the costs award in favour of the Defendant in the amount of $1,536 arising from an earlier motion, plus disbursements in the amount of $3,396.01 including HST and prejudgment interest in the amount of $797.05.

[5] The Defendant submits that there ought not to be an award of costs but alternatively if there is to be an award of costs, same ought to be reduced substantially to reflect the substantially reduced amount on the principle claim and the fact that the issue of costs with respect to the previous motion by the Defendant has already been addressed in an earlier ruling but nevertheless included in the Plaintiff’s Bill of Costs.

[6] Rule 57.01(1) of the Rules of Civil Procedure indicates that in exercising my discretion under s.131 of the Courts of Justice Act to award costs I may consider, in addition to the result in the proceeding and any Offer to Settle:

(1) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by the lawyer;

(2) 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;

(3) the amount claimed and the amount recovered in the proceeding;

(4) the apportionment of liability;

(5) the complexity of the proceeding;

(6) the importance of the issues;

(7) the conduct of any parties that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(8) whether any step in the proceeding was improper, vexatious or unnecessary or taken through negligence, mistake or excessive caution;

(9) a party’s denial of or refusal to admit anything that should have been admitted;

(10) any other matter relevant to the question of costs.

[7] The Plaintiff was successful on the motion, though in a significantly reduced amount from that sought in the Statement of Claim. To that extent, the Defendant did enjoy some success on the motion and I keep this in mind in determining an appropriate amount.

[8] This proceeding was not particularly complex. The issues were of moderate importance at best.

[9] The Defendant’s defences had little if any merit and it might be inferred that they were designed to delay the issuance of judgment against her. It is reasonable to conclude that the Defendant’s efforts in this regard did tend to unnecessarily lengthen the duration of this proceeding.

[10] The Plaintiff was seeking judgment in the amount of $75,834.44 plus disbursements, interest and costs. I granted judgment in the amount of $29,445.56, representing less than 50 percent of the amount claimed by the Plaintiff.

[11] There are no Offers to Settle which have an impact on my assessment of costs.

[12] The issue of costs with respect to the Defendant’s motion to amend was addressed by the court in an earlier ruling and it is not appropriate to include a further claim for those costs on this motion for summary judgment.

[13] In all the foregoing circumstances, and keeping in mind the ultimate objective to achieve a result on costs that is reasonable and fair in the circumstances, I award costs in favour of the Plaintiff in the amount of $13,000 inclusive of HST and disbursements.

[14] The Plaintiff advanced a claim for prejudgment interest in the amount of $797.05 at the rate of 1.3 percent from June 22, 2012. The Defendant did not oppose this request and therefore there will be further judgment in favour of the Plaintiff for prejudgment interest in the amount of $797.05.

DOUGLAS J.

Date: November 28, 2014