Court File and Parties

CITATION: Lauesen v. Silverman, 2015 ONSC 2495

COURT FILE NO.: CV-11-433799

DATE: 2015-04-20

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Melody Lauesen, Plaintiff

AND:

Fern Silverman and Goldman Sloan Nash and Haber LLP, Defendants

BEFORE: Pollak J.

COUNSEL: Bryan D. Rumble, for the Plaintiff

B. Robin Moodie and Bronwyn M. Martin, for the Defendants

HEARD: June 17 and November 12, 2014

SUPPLEMENTARY COSTS ENDORSEMENT

[1] I have now had the opportunity to review all of the cost submissions of the parties with respect to the above-noted matter. I am of the view that the agreement arrived at between counsel was that the victorious party on this motion would be awarded $10,000 in costs on a partial indemnity basis. This agreement did not address the issue of Defendant’s right to ask for costs of dismissal of the action in the event the Defendant was successful. The question posed by the Court was specifically “what reasonable costs would be on a partial indemnity basis going to the victorious party on this motion”. The reason that the costs of the action would not be addressed is because in the event the Plaintiff had been successful, the Plaintiff would have received the amount of $10,000 in costs.

[2] The Defendant was the successful party on the motion for summary judgment. As well, the Defendant has the right to make submissions with respect to its additional costs arising from the fact that the action has been dismissed. These submissions have been made. I therefore do not accept the argument of the Defendant that the costs award must be limited to the amount of $10,000. As well, the parties have asked the Court to make the attached Consent Order, which has now been granted.

[3] I do agree with the Plaintiff that costs should be awarded to the Defendant on a partial indemnity basis, as the Defendant has not provided the Court with any submissions that would justify the awarding of costs on a substantial indemnity basis. Unfortunately, the Defendant has not provided the Court with its partial indemnity rate. The Court must therefore exercise its discretion to fix costs in this matter. The Plaintiff suggests that the Defendant should be awarded 50 percent of the actual rate which was charged to the Defendant. That amount is for $13,838.50. The Plaintiff has not provided the Court with any justification for such a reduction by way of argument with respect to an excessive amount of time that was spent by the Defendant in order to defend the action. In reviewing the Bill of Costs, I am of the opinion that it is just and reasonable in the circumstances and that the Plaintiff should have expected that in the event she was unsuccessful and her action was dismissed to order that the Plaintiff pay costs of $15,000 plus disbursements of $3,873.92, in addition to the $10,000 costs that has been agreed to by counsel to be paid to the Defendant by the Plaintiff. For these reasons, I order the Plaintiff to pay to the Defendant the amount of $15,000 in costs as well as disbursements of $3,873.92. These amounts include any applicable taxes.

[4] The Defendant is awarded $15,000 for legal fees plus disbursements of $3,873.92, which amount includes all of the applicable taxes, to be paid by the Plaintiff.

Pollak J.

Date: April 20, 2015