CITATION: Longo v. MacLaren Art Centre Inc., 2015 ONSC 3647

BARRIE COURT FILE NO.: CV-09-1532

DATE: 20150605

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JAMES LONGO, MOLLY LONGO, DINO DELUCA, GRANT VOGELI, CELIA MARTIN, MARTIN JOHNSON and GEOFFREY GOAD

Plaintiffs

– and –

MACLAREN ART CENTRE INC.

Defendant

John J. Adair/Gordon McGuire, for the Plaintiffs

Arnold B. Schwisberg, for the Defendant

HEARD: by written submissions

REASONS FOR DECISION ON COSTS

DiTOMASO J.

PROCEEDINGS

[1] By order dated July 8, 2014, the Court of Appeal for Ontario ordered that “the Appellants [Plaintiffs] be awarded their costs of the summary judgment motion on a scale and in an amount to be agreed upon by the parties, or failing agreement, to be fixed by the motion judge”. The parties have not reached an agreement and the Plaintiffs and Defendant have filed written submissions in accordance with this court’s endorsement dated April 17, 2015.

COSTS OF THE SUMMARY JUDGMENT MOTION

Position of the Plaintiffs

[2] The Plaintiffs submit that they are entitled to costs incurred in responding to the summary judgment motion but not costs of pleadings, examinations for discovery etc. They submitted that the work done to respond to the summary judgment motion has not saved any particular significant amount of work that would have been necessary to prepare for trial and, as such, the costs should not be discounted on the basis that the work would have been done in any event. Many of the witnesses who were examined on the summary judgment motion had already been examined for discovery, and no new documents were produced. The summary judgment factum and attendance for two days of argument and the making of costs submissions were all required because MacLaren’s motion that was ultimately successful.

[3] It is submitted that the Plaintiffs’ offered to settle the summary judgment motion and subsequently achieved a result better than the offer that they made. The result after the appeal is better than the offer not only because substantial costs would have been saved had MacLaren accepted the offer but also because MacLaren had it accepted the offer would not have had to pay the $10,000 in costs from the rule 34.14 motion.

[4] It is submitted that the amount awarded must be consistent with the parties’ reasonable expectation. It is submitted that MacLaren must have reasonably expected that the Plaintiffs would respond with the same effort undertaken by MacLaren in bringing the summary judgment motion including five affidavits, four cross-examinations and two days of argument.

[5] Lastly, this court in its reasons of December 13, 2013 found that it was in the expectation of both parties that the costs would be high and significant in this matter given the context, issues and procedural matters which combined to make this litigation protracted and expensive.

[6] The Plaintiffs seek $50,000 including HST for fees of the summary judgment motion and disbursements inclusive of HST in the amount of $3,236.40 also referable to the summary judgment motion.

Position of the Defendant

[7] On behalf of the Defendant it is submitted that the scale quantum and payment of costs is entirely in the discretion of the motion judge. Costs of the motion should be in the cause; or alternatively, fixed to the Plaintiff but in the cause.

[8] MacLaren submits that at worst it should only be held liable for the partial costs of the oral hearings held April 3 and July 26, 2013 with disbursements of $880.06 plus the rule 34.14 motion but not forthwith in either case.

[9] It is submitted that there is no basis to determine what part, if any, the request for costs on the summary judgment motion is reasonable. Further, the Plaintiff’s Offer to Settle for the purposes of rule 49.10 is premature until the remaining issues in MacLaren’s motion for summary judgment have been determined. It is submitted that the Plaintiffs have not obtained an order fully and finally disposing of said motion, which MacLaren submits is what triggers rule 49.10.

[10] I find that the Plaintiffs Deluca and Vogeli are entitled to costs of the motion on a partial indemnity scale. I agree that the Plaintiffs’ Offer to Settle for the purposes of rule 49.10 is premature until the remaining issues in MacLaren’s motion for judgment have been determined.

[11] I am governed by the overarching principles in determining costs as set out in Davies v. Clarington (Municipality), 2009 ONCA 722 at paras. 50 – 54. The court is to exercise a “fair and reasonable” analysis with regard to the reasonable expectations of the unsuccessful party. Also brought to the analysis is a sense of proportionality.

[12] As a result of the Court of Appeal’s order dated July 8, 2014 the Plaintiffs (Appellants) became the successful parties on the summary judgment motion.

[13] I have had the benefit of reviewing the costs submissions of the parties in respect of my previous endorsement on costs dated December 13, 2013.

[14] MacLaren submits that there is no basis of determining what part, if any, of the global request of $50,000 claimed by the Plaintiffs is reasonable.

[15] In those previous submissions, the Plaintiffs Deluca and Vogeli sought costs in the amount of $50,000 for fees plus $13,000 for disbursements for a total of $63,000 plus HST while MacLaren sought total costs on a partial indemnity basis of $155,468.19.

[16] I accept that MacLaren’s summary judgment motion involved five affidavits, four cross-examinations and two days of argument. I further accept that MacLaren’s counsel submitted 120 hours on the summary judgment motion alone (excluding the rule 34.14 motion) at a rate of $490 an hour for a total of $58,800 exclusive of disbursements and HST. I find that while MacLaren was entitled to bring the motion it must have reasonably expected that the Plaintiffs would respond with a similar effort. The hours identified by the Plaintiffs were calculated from MacLaren’s cost submissions previously filed in November 2013.

[17] In my Reasons of December 13, 2013 I did find that it was within the expectation of the parties that the costs would be high and significant in this matter.

[18] I do not accept the submission on behalf of MacLaren that MacLaren at worst would be liable for partial costs of the oral hearings on April 3 and July 26, 2013.

[19] Rather, I find that the sum of $50,000 inclusive of HST for fees of the summary judgment motion in all the circumstances is fair and reasonable taking into consideration the reasonable expectation of what costs the unsuccessful party would be expected to pay.

[20] Accordingly, in exercising my discretion, the Defendant MacLaren shall pay the sum of $50,000 (inclusive of HST) for fees of the summary judgment motion together with disbursements in the amount of $3,236.40 of the summary judgment motion for a total of $53,236.40 to the Plaintiffs Deluca and Vogeli in any event of the cause.

RULE 34.14 MOTION

[21] In respect of the rule 34.14 motion, the Plaintiffs were successful and I order the sum of $10,000 all-inclusive be paid by MacLaren to the said Plaintiffs. The sum of said $10,000 was set-off against MacLaren’s costs. I agree that $10,000 must now be added to whatever is awarded to the Plaintiffs for costs of the summary judgment motion. Therefore, MacLaren shall pay to the Plaintiffs Deluca and Vogeli the sum of $10,000 for the rule 34.14 motion in any event of the cause.

DISPOSITION

[22] Accordingly, this court orders that costs shall be awarded as follows:

(a) The Defendant MacLaren shall pay to the Plaintiffs Deluca and Vogeli the sum of $10,000 all-inclusive in any event of the cause for the rule 34.14 motion.

(b) The Defendant MacLaren shall pay to the Plaintiffs Deluca and Vogeli the sum of $50,000 (inclusive of HST) for the fees of the summary judgment motion together disbursements of the summary judgment motion in the amount of $3,236.40 for a total of $53,236.40 all-inclusive payable in any event of the cause.

DiTOMASO J.

Released: June 5, 2015