SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-14-503488
DATE: 20150810

RE: BRIAN WILSON

Plaintiff

-AND-

NORTHWEST VALUE PARTNERS INC. and NORTHWEST INTERNATIONAL HEALTHCARE PROPERTIES REAL ESTATE INVESTMENT TRUST

Defendants

BEFORE: M. D. Faieta, J.

COUNSEL:
Jeff C. Hopkins, for the Plaintiff

Jonathan D. Cocker, for the Defendants

HEARD: July 15, 2015

COSTS ENDORSEMENT

[1] For reasons given on July 23, 2015, the plaintiff was successful in his motion to enforce a settlement agreement that he entered with the defendants. The plaintiff seeks its costs on a substantial indemnity basis in the amount of $32,886.50.

[2] The plaintiff submits that the requested amount of costs is justified because the plaintiff put the defendants on notice prior to bringing this motion that he would seek costs on a substantial indemnity basis. This ground was not addressed by the defendants in their submissions.

[3] The defendant references Rule 57.01(1)(e) and (f) of the Rules of Civil Procedure, and more particularly, submits that their conduct did not unnecessarily lengthen the proceeding nor was this motion “improper, vexatious or unnecessary”. The defendants submit that their ignorance of the plaintiff’s post-employment activities raised a genuine legal issue of whether there was a consensus ad idem respecting the settlement agreement. In my view, it should have been unnecessary for the plaintiff to bring the motion to enforce the settlement agreement.

[4] The defendant also references Rule 57.01(1)(g) of the Rules of Civil Procedure and submits that the defendants did not refuse to admit anything that should have been admitted. The plaintiff states that the defendants denied that it executed the settlement agreement because they took issue with Mr. Crotty’s authority to sign the settlement agreement without the approval of other corporate officers.

[5] In my view, the conduct of the defendants does not justify an elevated costs award as neither of the criteria noted by the Ontario Court of Appeal in Davies v. Clarington 2009 ONCA 722, [2009] O.J. No. 4236 (C.A.), at paragraph 29, have been satisfied. A Rule 49.10 offer was not made. Further, the conduct of the defendants was not “reprehensible, scandalous or outrageous”. Nevertheless, the conduct of the defendants is a significant consideration in this costs award.

[6] The hours claimed in the Costs Outline, once added up, shows that over 90 hours of counsel time is claimed. I find that amount excessive in the circumstances (preparing and attending on a motion as well as cross-examinations). I award costs to the plaintiff on a partial indemnity basis in the amount of $16,000.00.

Mr. Justice M. D. Faieta

Released: August 10, 2015