2015 ONSC 4897

COURT FILE NO.: CV-12-00470074-0000
DATE: 20150804

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sterling Waterhouse Inc., Plaintiff

AND:

LMC Endocrinology Centres (Toronto) Ltd. (Formerly Known As LMC Developments Ltd.) and Dr. Ronnie Aronson, Defendants

BEFORE: Justice W. Matheson

COUNSEL:
John Mullen, for the Plaintiff

Leo Klug, for the Defendants

HEARD: In Writing.

COSTS ENDORSEMENT

[1] By decision released June 23, 2015, summary judgment was granted against the defendant Dr. Aronson in relation to his limitation period defence. Written submissions have since been received on costs.

[2] Costs of the other motions heard together with this motion were also left open to be addressed at this time, specifically costs of LMC’s unsuccessful motion to set aside the noting of it in default and for summary judgment, and costs of the plaintiff’s successful motion for default judgment against LMC.

[3] There is no issue between the parties that the plaintiff, as the successful party on the main motion regarding limitation periods, should have its costs. The plaintiff seeks about $9,300 on a partial indemnity basis, all inclusive, in regard to that motion. The plaintiff also seeks about $1,100 for defeating LMC’s motion to set aside its noting in default and the same amount for its successful motion for default judgment against LMC. The amounts claimed are reasonable in comparison to the defendants’ bill of costs. The defendants submit that the motion to set aside the noting in default did not materially add to the overall costs and that costs for all three motions should be fixed at $9,500, all inclusive.

[4] The general principles applicable to the order of party and party costs are well settled. Costs are discretionary. Rule 57.01 of the Rules of Civil Procedure sets out factors I may consider in exercising my discretion, in addition to the result of the proceeding and any written offers to settle. Overall, the objective is to fix an amount that is fair and reasonable, having regard for, among other things, the expectations of the parties concerning the quantum of costs: Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634, 71 O.R. (3d) 291 (C.A.) at paras. 26, 38.

[5] Dealing with the more minor motions first, they did add to the overall costs. They were based on different legal principles. Materials had to be prepared. There was oral argument on them. I have considered all of the relevant factors under Rule 57.01 in the exercise of my discretion and conclude that LMC shall pay costs to the plaintiff for these two motions, fixed at $1,000 each, inclusive of disbursements and any applicable tax.

[6] The plaintiff asks that these two costs orders be extended to apply not only to LMC but also to Dr. Aronson. I decline to do so. These two motions were brought by and against LMC, not Dr. Aronson. If, however, the plaintiff is successful in its attempt to prove that Dr. Aronson is personally liable as the alter ego of LMC, the plaintiff is free to seek that these costs be paid by Dr. Aronson.

[7] Moving to the summary judgment motion decided against Dr. Aronson, I have considered all of the relevant factors under Rule 57.01 in the exercise of my discretion and conclude that Dr. Aronson shall pay costs to the plaintiff in the amount of $9,000, inclusive of disbursements and any applicable tax.

Justice W. Matheson

Released: August 4, 2015