Erum Siddiqui v. Thomas Franchetto, 2015 ONSC 8064

SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-15-0700-00
DATE: 2015 12 23

RE: ERUM SIDDIQUI, Plaintiff

and

THOMAS FRANCHETTO, Defendant

BEFORE: MACKENZIE J.

COUNSEL:
Fawad Siddiqui, for the Plaintiff
Matthew MacIssac, for the Defendant

HEARD: December 3, 2015

ENDORSEMENT RE:

1. Form and content of order from motion of december 3, 2015; and

2. costs of motion heard december 3, 2015

[1]

Form and Content of Order

By Endorsement dated December 3, 2015, I granted the defendant’s motion (a) to compel the plaintiff to answer within 30 days the outstanding undertakings from her examination for discovery; and (b) requiring the plaintiff to pay all costs associated with obtaining the documents necessary to satisfy the outstanding undertakings. I directed the costs of the motion were to be the subject of written submissions no later than December 11, 2015.

2I have in the interval received such written submissions. These submissions indicated disagreement between the parties not only as to the entitlement and quantification of any costs award but also as to the scope of the order in reference to outstanding undertakings. I will deal first with the scope of the outstanding undertakings issue.

3The draft Order proffered by the defendant enumerates in Schedule “A” to the draft Order the subject undertakings. The data in Schedule “A” were as set out in the motion materials. Included in the listed undertakings is the express agreement by counsel for the plaintiff to provide the plaintiff’s “updated income tax returns from 2014 onwards”: Schedule “A”, 1st page, undertaking #1, re: Q. 518.

4Counsel for the plaintiff now submits that the resulting Order from the Endorsement of December 3, 2015 should not include production of the plaintiff’s 2014 income tax return.

5I reject this contention by the plaintiff’s counsel.

6The words in my handwritten Endorsement of December 3, 2015, “o/s [outstanding] undertakings” cannot be parsed in the manner sought by plaintiff’s counsel. To do so would in effect be ignoring the description of all the outstanding undertakings set out in “Schedule “A”, as it appeared in the motion materials.

7The resulting Order shall issue in the form submitted by the defendant’s counsel.

[8]

Costs

I turn now to the costs issues.

9The defendant seeks costs of the motion in the amount of $7,838.67 on a substantial indemnity basis and $5,808.94 on a partial indemnity basis.

10Counsel has served and filed a Costs Outline as directed. The Costs Outline sets out the names of the law firm’s professional staff engaged in the motion; their respective hourly rates on both the substantial- and partial indemnity bases; the total time expended by each of them and a brief description of the work encompassed by those times. The disbursements claimed total $1,750 and are unremarkable.

11Counsel for the defendant argues that some of the factors to be considered in R 57.01(1) are engaged here, namely, (1) the plaintiff’s refusal to accept the responsibility for paying for the production (not duplication) of third party records, (2) the importance of the issue of a party’s responsibility to fund production of documents relevant to both liability and damages issues; and (3) the experience of counsel for the defendant (call to Bar 2007). Counsel seeks the award of costs to be on the partial indemnity basis.

12In response, counsel for the plaintiff contends the issue that was the subject of the motion was not complex and that the plaintiff required the court’s direction on the basis there were conflicting decisions on the issue addressed in the motion. Counsel further argues the time expended by counsel in the preparation of the motion is excessive at 9.9 hours, being just over twice the time expended by the two law students. Counsel submits there is no delineation or allocation among counsel for the defendant and these two law students of the various work items. In this regard, counsel contends there may well have been a duplication of work between counsel for the defendant and the two law students. In the absence of any indication as to the work allocation, counsel for the plaintiff urges the court to conclude the 9.9 hours logged by counsel for the defendant should be treated as excessive.

13Counsel further argues claiming 3.0 hours for appearing on the hearing is excessive since the actual time spent arguing was 1 hour. Although hourly rates may be subject to discounting to take into account travelling time, I am not prepared to apply a discount similar in concept to the 3 hours claimed by counsel for the defendant.

14I am also cognizant of another factor under R. 57.01(1), namely, (0.b), being the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed.

15In Smith Estate v. Rotstein, (2011) 2011 ONCA 491, 106 O.R. (3d) 161 (CA), the court addressed the reasonable expectations of the losing party. In this regard, the court observed that although a losing party is not required to file a bill of costs, not filing such bill of costs is a factor to be taken into account when considering the reasonable expectations of the losing party.

16Counsel for the plaintiff has not filed its bill of costs but rather has pleaded that a costs sanction against her “would have a chilling effect on the plaintiff’s ability to advance her claim and could deprive her of access to justice.” Other than a bald statement by her counsel that she “earns just above minimum wage”, there is no evidentiary basis for this position. In the circumstances, I give no effect to counsel’s submission.

17In the result, I award costs herein to the defendant on a partial indemnity basis and fix the same at $4,800. Such award shall be payable by the plaintiff within 30 days from the date of this endorsement.

MacKenzie, J.