Court File and Parties
CITATION: Sandu v. Fairmont Hotels Inc., 2015 ONSC 2230
COURT FILE NO.: CV-08-363445
DATE: 20150415
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: sevillya sandu
Plaintiff
- and -
fairmont Hotels inc. and darren skomorowsky
Defendants
BEFORE: E.M. Stewart J.
COUNSEL: Andrew MacDonald, for the Plaintiff
Lorne Honickman and David Elmaleh, for the Defendants
HEARD: In writing
Endorsement
[1] In my decision of December 28, 2014, I invited counsel for the parties to make written submissions on costs if that subject could not be agreed upon. I now have received and considered those submissions.
[2] The action brought by the Plaintiff was dismissed following a seven-day trial.
[3] The Defendants seek partial indemnity costs of the action to September 3, 2013 (being the date of delivery of their Rule 49 Offer to Settle) and on a substantial indemnity basis thereafter. The costs and disbursements sought by the Defendants using this approach total approximately $88,000.
[4] If partial indemnity costs only are ordered throughout, the Defendants submit that these should be fixed in the aggregate amount of approximately $76,000.
[5] The Plaintiff submits that no order for costs should be made. In support of that position, reference is made to my finding that the Plaintiff was not intoxicated, contrary to the contents of the document which gave rise to the action. Further, the Plaintiff argues that the suggestion made on behalf of the Defendants at trial that she and other members of her family had fabricated their complaint of smoke in their hotel room to be relieved of the obligation to pay for the room served to unduly complicate and lengthen the trial.
[6] Reference was also made to the Defendants’ refusal to produce the document in its entirety until after the litigation was commenced, and then only in a redacted version.
[7] The Plaintiff submits that these efforts and actions by the Defendants unduly lengthened the trial and ought to operate so as to eliminate any entitlement to costs. I cannot agree. Even though the Defendants did not prevail on every fact in issue, these issues were necessary to be addressed given the nature of the claims made.
[8] The Plaintiff also submits that the Rule 49 Offer should not trigger substantial indemnity costs consequences, since that offer did not specify any amount for costs or a method of their assessment. It indicated that costs were to be agreed upon between counsel only. I agree and do not view the offer made to comply adequately with Rule 49 such that costs following it should be awarded on a substantial indemnity basis.
[9] I note that the damages sustained as a result of the alleged defamation were assessed by me at a very modest amount.
[10] Having considered all of the submissions made by the parties, and with particular reference to the principle of proportionality and the reasonable expectations of the parties, I am of the view that the Defendants ought to recover an award of costs.
[11] When all of the factors affecting costs of this action are taken into account, I consider a fair and reasonable amount to award to the Defendants for their costs is $40,000, inclusive of disbursements and applicable taxes and I so order.
STEWART J.
Date: April 15, 2015