CITATION: Arnone v Best Theratronics Ltd., 2015 ONSC 6101
OTTAWA COURT FILE NO.: 13-56404
DATE: October 1, 2015
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Matthew Arnone, Plaintiff
AND
Best Theratronics, Defendant
BEFORE: The Honourable Mr. Justice Martin James
COUNSEL: Christopher Rootham, Counsel for the Plaintiff
George Vuicic, Counsel for the Defendant
HEARD: Written Submissions
COSTS ENDORSEMENT
James J.
[1] This action was originally before me by way of a motion made by the plaintiff for summary judgment. A judgment was granted in favour of the plaintiff and the decision was appealed to the Court of Appeal. This is a costs endorsement made pursuant to an order of the Court of Appeal of Ontario following the hearing of the appeal in this action where Brown, J.A. directed as follows at paragraph 35:
Since a motion judge should take into account the effect, if any, of offers to settle on the ultimate award of costs for the motion, the most appropriate way to proceed is to set aside the cost award contained paragraph 5 of the order and remit the issue of costs back to the motion judge for his determination.
[2] A review of the factual background helps put this direction in context. The plaintiff made two offers to settle. The first offer was made prior to the commencement of the action. It did not qualify as an offer in writing under rule 49 and does not trigger the costs consequences associated with that rule (Scanlon v. Standish (2002) 2002 CanLII 20549 (ON CA), 57 O.R. (3d) 767 at para. 8).
[3] The second offer was made in February 2014. The defendant concedes that this offer qualified for consideration under rule 49 and that the amount of the award granted by the Court of Appeal exceeded the amount for which the plaintiff was prepared to settle as indicated by the terms of the second offer. Stated another way, the offer indicated that the plaintiff was prepared to settle for less than the amount ultimately awarded to him by the Court of Appeal. This means that the plaintiff has a prima facie entitlement to seek enhanced costs recovery from the partial indemnity scale to the substantial indemnity scale for legal services provided to the plaintiff subsequent to the date the offer was made.
[4] The defendant’s main argument in response to the plaintiff’s request for additional costs is that the amount claimed by the plaintiff is excessive. The defendant refers to its own legal costs as a benchmark against which the plaintiff’s costs ought to be assessed. Also, the defendant says reasonableness and proportionality considerations support its assertion that the amount claimed is excessive.
[5] The monetary value in dispute is not large. The plaintiff claims $60,000 for fees (inclusive of HST) and $4,280.09 for disbursements for a total of $64,280.09. The additional amount requested by the plaintiff due to the operation of the costs consequences pursuant to rule 49 is about $12,000. The plaintiff says the actual value of its additional entitlement due to the presence of a successful offer is about $16,500. The plaintiff has conceded a 25% reduction for the factors identified in the original award (see paragraph 16 plaintiff’s costs submissions).
[6] The defendant says that the sum of $52,280.09[^1], inclusive of disbursements and taxes would be appropriate. The value of the dispute respecting legal costs is therefore $12,000.
[7] The plaintiff ought to get some benefit due to the fact he made a successful offer. In my view, the additional amount claimed by the plaintiff by reason of the presence of a favourable offer to settle is reasonable, especially considering the 25% reduction conceded by the plaintiff. Accordingly, the costs award granted to the plaintiff is amended from $52,280.09 to $64,280.09.
Mr. Justice Martin James
DATE RELEASED: October 1, 2015
CITATION: Arnone v Best Theratronics Ltd., 2015 ONSC 6101
OTTAWA COURT FILE NO.: 13-56404
DATE: October 1, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Matthew Arnone, Plaintiff
AND
Best Theratronics Limited, Defendant
BEFORE: The Honourable Mr. Justice Martin James
COUNSEL: Christopher Rootham, Counsel for the Plaintiff
George Vuicic, Counsel for the Defendant
COSTS ENDORSEMENT
James, J.
Released: October 1, 2015
[^1]The amount I initially awarded to the plaintiff was $52,280.09 on a partial indemnity basis.