COURT FILE NO.: CV-11-427038

DATE: 20150806

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Azeta Ghaeinizadeh, by his litigation guardian Baheih Sharifi, Payam Ghaeinizadeh, Azeta Ghaeinizadeh, Manouchehr Ghaeinizadeh, Ilinaz Naeli, Ila Naeli, Jaclyn Orsetto, Bahieh Sharifi, Arash Sharifi, Masoumeh Abbasian, Mehran Yazdani, Lerpon Paul Greenspon, Armonico Corp., 6740197 Canada Corp., Operating as Dux Holdings, and Ku de ta Capital Inc. Plaintiffs

AND:

Garfinkle, Bederman LLP, Wendi H. Greenspoon-Soer, Dorota Smolarkiewicz, Michelle R. Frost, Jean Jerome Cusmariu, Rajan Katyal, Robins Appleby & Taub LLP and Peggy Spadafora, Defendants

BEFORE: Carole J. Brown, J.

COUNSEL: Jerome R. Morse and Lionel Tupman, for the Plaintiffs

Daniel Bernstein, for the Defendants

HEARD: In-Writing

COSTS ENDORSEMENT

[1] The plaintiffs, who were wholly successful in defeating the summary judgment motion brought by the defendant, Jean Jerome Cusmariu, seek their costs of the summary judgment motion on a substantial indemnity basis in the amount of $85,535.89, including disbursements and HST.

[2] The moving party defendant argues that these costs are excessive and are not proportionate to the damages claimed as against the moving party in the action, that the moving party did not act unreasonably in bringing the summary judgment motion and that costs should be awarded on a partial indemnity basis. Further, they argue that the cost of the expert witness relied upon by the moving party in the amount of $18,000 should not be included in disbursements as, in my endorsement, I found it was of no assistance in the determination of the motion, as follows:

"… this is, of course, an expert opinion which is not determinative of the issue, but is based on unproven assumptions and therefore of no assistance in this motion.

[3] Costs are intended to compensate the successful party in the litigation for allowable legal costs incurred. In this instance, the plaintiffs were wholly successful in defeating the summary judgment motion and are entitled to costs.

[4] I am of the view that, in the circumstances of this case, costs on substantial indemnity basis are not appropriate. Substantial indemnity costs are warranted where there is an offer to settle under R. 49.10 or where there is a clear finding of reprehensible, scandalous or outrageous conduct on the part of the party against which the costs award is being made. There is no evidence to suggest behaviour which would warrant substantial indemnity costs.

[5] In exercising my discretion to award costs, I have taken into consideration the factors set forth at R. 57.01(1) of the Rules of Civil. Procedure, the reasonableness of the costs sought by the responding party plaintiffs and have also considered proportionality. I award costs on a partial indemnity basis payable forthwith by the moving party defendant to the plaintiffs in the amount of $35,000 inclusive of HST, and disbursements in the amount of $6,602.90. I have removed the cost of the expert report, which was not of assistance to this Court in arriving at its decision.

Carole J. Brown J.

Date: August 6, 2015