Court File and Parties
CITATION: Martincevic et al. v. King West Fitness Inc. et al., 2015 ONSC 6133 COURT FILE NO.: CV-12-44665400A1 DATE: 2015-10-02
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: INEZ MARTINCEVIC, Plaintiff AND: KING WEST FITNESS and MARCELLA BARIC, Defendants AND: REEBOK INTERNATIONAL LTD. and REEBOK CANADA, Third Parties
BEFORE: K. HOOD, J.
COUNSEL: Ashley Richards and Ivana Bozinovic, for the Defendants Brian G. Sunohara, for the Third Parties
HEARD: August 24, 2015
COSTS ENDORSEMENT
[1] I have received the cost submissions of the defendants and third parties.
[2] Being successful on the motion, the defendants are presumptively entitled to their costs of the motion. No offers to settle the motion were referred to in the submissions made.
[3] The total being sought by the defendants including disbursements is $41,041.95, which includes a disbursement amount of $18,666.50, which I take to be inclusive of HST, for an expert report. The expert report was included in the responding motion record filed by the defendants on the motion. It relates to the risks of the Jukari program. Reference was briefly made to the expert report in the defendants’ factum.
[4] However, the expert report played no role in the motion which was argued before me. The issue before me was quite narrow – whether the contract between Reebok and King West provided that King West is to indemnify Reebok for the plaintiff’s claim so that the defendants’ third party claim should be dismissed.
[5] The costs relating to the expert report should be left to the trial judge where the issue of liability will likely be argued or perhaps to the judge hearing another summary judgment motion if the third parties decide to bring one.
[6] The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01. These include the principle of indemnity for the successful party, the expectations of the unsuccessful party, the complexity of the issues and the importance of the issues. The objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay rather than an amount fixed by the actual costs incurred by the successful party.
[7] The defendants’ costs, less the fee for the expert, are approximately $20,000.00 before HST. The third party argues that $11,000.00, being fees of $10,000.00 and disbursements of $815.00, before HST is more reasonable.
[8] I find the amount being sought by the defendants to be excessive, considering that the actual motion argued before me was quite narrow. The defendants did have to respond to the alternative limitation of liability argument raised by the third parties at the 11th hour. Their costs appear to include something for this, to which they are entitled, despite my order that the third parties may revisit this argument if so advised.
[9] I see no reason to leave the issue of whether the costs of this motion should be payable to another motion judge or the trial judge. The third parties brought a motion. They were unsuccessful. Costs should be paid now.
[10] I order costs for the motion fixed in the amount of $15,000.00 inclusive of disbursements and HST, payable by the third parties to the defendants within 30 days of today’s date. This amount does not include the disbursement for the expert report which the defendants are free to seek elsewhere.
K. Hood, J.
Date: October 2, 2015