SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-07-335985
MOTION HEARD: OCTOBER 14, 2015

RE: Ray Anderson Trilokie

v.

Elizabeth Lasenby and Greyhound Canada Transportation Corporation

BEFORE: MASTER R.A. MUIR

COUNSEL: Bahram Dehghan for the defendants
John Lea for the plaintiff

SUPPLEMENTARY REASONS FOR DECISION - COSTS

[1] On October 14, 2015 I heard a motion brought by the defendants pursuant to section 105 of Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 33 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). The defendants sought an order requiring the plaintiff to attend a second defence psychiatric examination.

[2] I released my reasons for decision on October 16, 2015. I granted the relief requested by the defendants. I also asked for costs submissions in writing. I have now received and considered those submissions.

[3] The defendants argue that they have been entirely successful on this motion and are entitled to costs. They ask for partial indemnity costs of $11,653.71 inclusive of HST and disbursements. The plaintiff suggests that costs to the defendants in the amount of $2,273.30 would be fair and reasonable in the circumstances.

[4] The court’s general authority to award costs as between parties to litigation is found in section 131(1) of the CJA, which provides that costs are in the discretion of the court. Rule 57.01(1) sets out a non-exhaustive list of factors the court is to consider when awarding costs. Rule 1.04(1.1) is also applicable. It requires the court in applying the Rules to make orders that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding. Rule 57.03 provides that in most cases the costs of a motion should be fixed by the court and made payable within 30 days. When dealing with costs, the overall objective for the court is to fix an amount that is fair and reasonable for the unsuccessful party who generally must pay the costs of the successful party. See Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] OJ No. 4495 (CA) at paragraph 4 and Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] OJ No. 2634 (CA) at paragraph 26. In Clarington (Municipality) v. Blue Circle Canada Inc., 2009 ONCA 722 the Court of Appeal stated as follows at paragraph 52:

Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.

[5] These are the factors and principles I have considered in determining the costs issues on this motion.

[6] The defendants were completely successful and are entitled to costs. I agree with the defendants that this motion was moderately complex, at least from a factual perspective. The defendants’ counsel had to review and summarize a great deal of medical evidence. The material included a lengthy affidavit and factum. The defendants’ lawyer also had to review a substantial responding affidavit and factum delivered by the plaintiff.

[7] This motion was also very important to the defendants. The trial of this action is fixed to begin in May 2016. The defendants’ first expert psychiatric report was prepared in 2011. It was obviously important to the defendants to obtain an up to date report as the trial date approached.

[8] It is also important to note that the defendants offered to settle the costs of this motion for $5,000.00.

[9] Nevertheless, the costs requested by the defendants in their costs outline appear to be somewhat excessive. More than forty hours was devoted to research and preparation of motion materials. While this motion may have been factually complex, the applicable law is well settled. I view this amount of time as excessive in the circumstances, especially when compared to the plaintiffs’ costs outline which sets out a much more modest amount of preparation time.

[10] For these reasons, I have concluded that it is fair and reasonable for the plaintiff to pay the defendants’ costs of this motion fixed in the amount of $6,000.00, inclusive of HST and disbursements. These costs shall be paid by December 17, 2015.

Master R.A. Muir

DATE: November 17, 2015