CITATION: Gigone v. Siao, 2016 ONSC 1555
COURT FILE NO.: 1118/10
DATE: 2016/03/04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Franco Gigone, carrying on business under the firm name and style of Capital Investments & Contracting
Michael S. Stratton, for the Plaintiff
Plaintiff
- and -
Dr. San Siao, also known as Dr. Sou San Siao and carrying on business under any or all of Peace Bridge Dental Care, Oracare, Oracare Dental and Peace Bridge Dental
Brent K. Harasym, for the Defendants
Defendants
The Honourable Justice T. Maddalena
COSTS ENDORSEMENT
[1] On January 15, 2016 I released written reasons to the parties in connection with this proceeding.
[2] I have now received and reviewed written costs submissions from both parties.
The Position of the Defendant Dr. Siao (“Siao”)
[3] Siao submits he is the successful party and should be entitled to his costs on a partial indemnity basis, together with disbursements, plus HST. Siao, therefore, claims that his costs, utilizing the partial indemnity hourly rate, amount to $95,200.00 (rounded) for the nine day trial.
[4] In the alternative, Siao claims the actual legal fees alone are $74,637.50. Utilizing 60% for the partial indemnity rate would, therefore, amount to $44,782.50, plus disbursements, plus HST.
The Position of the Plaintiff Franco Gigone (“Gigone”)
[5] The plaintiff, firstly, submits that he obtained a judgment as favourable as or more favourable than the terms of his offer to settle and, thus, should be entitled to partial indemnity costs to the date the offer was served and substantial indemnity costs from that date forward.
[6] In the alternative, Gigone submits that each party should bear his own costs.
[7] Further, in the alternative, Gigone submits that costs should be limited in accordance with s.29 of the Courts of Justice Act, RSO 1990, c C.43.
[8] The plaintiff submits its fees, together with disbursements and HST, total $70,000.00 (rounded).
ANALYSIS
Offer to Settle
[9] I first wish to review the offers to settle appended to Gigone’s costs submissions. The first offer to settle is dated January 30, 2014. This is an offer made by Gigone to Siao wherein Gigone offers to settle proceedings based on Siao paying to him $30,000.00 in full and final satisfaction of the claim, interest, and costs.
[10] Given my judgment, I do not find this offer suggests success on the part of the plaintiff nor does it attract Rule 49.10.
[11] The second offer enclosed in Gigone’s costs submissions is correspondence dated September 20, 2012 sent by Siao to Gigone. This is an offer made by Siao to Gigone to settle all claims upon payment by Gigone to Siao of $15,000.00 in full and final settlement.
[12] This offer also does not attract Rule 49.10.
Rule 57.01(1)
[13] Given that the defendant Siao was awarded damages for breach of contract greater than the plaintiff’s claim, the defendant ought to have his costs of the action on a partial indemnity basis, subject to a fair and reasonable reduction, taking into consideration all of the circumstances and the set-off amount. In the end, Gigone owed Siao monies; therefore, Siao is the more successful party.
[14] I have considered all those factors in Rule 57.01(1) of the Rules of Civil Procedure:
• The rates charged by Siao’s counsel are reasonable. However, since Douglas Carey was not permitted to testify as an expert, the disbursement costs associated with Doug Carey’s report are not permitted.
• While both amounts claimed and recovered were not large monetary amounts, this matter did require nine days of trial, which is a significant amount of time.
• The apportionment of liability is also an important factor. I concluded ultimately that the plaintiff owed the defendant monies as a result of the defendant’s counterclaim and damages awarded to him for the plaintiff’s breach of contract.
• While the issues were not complex in themselves, the presentation of evidence required significant time and detail.
• The issues outstanding were important to both parties.
• Overall, at the end of the nine day trial, the defendant is the more successful party. Siao’s damages were determined to be $34,730.00. Gigone’s claim was determined to be $32,694.00.
[15] I adopt the principle as set out in the case of Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), wherein the Court stated that the overall objective is to fix an amount that is fair and reasonable having regard to the broad range of factors in Rule 57.01(3) for the unsuccessful party to pay rather than an amount fixed by the actual costs incurred by the successful party.
[16] Further in Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 (C.A.), the Court stated:
“In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.”
[17] I conclude that the defendant’s fees plus disbursements, plus HST (less Carey’s disbursements) total approximately $90,000.00 (rounded). On a partial indemnity basis (60%), these costs total $54,000.00 (rounded). However, I also conclude that it is fair and reasonable to reduce this amount, in the particular circumstances of this case, given that the plaintiff’s claim against the defendant was found to be $32,694.00. (The defendant’s damages were $34,730.00 and the plaintiff’s claim was $32,694.00.)
[18] Therefore, given the considerations in Rule 57.01(1) and a consideration of what is fair and reasonable, I have concluded that Gigone shall pay Siao costs fixes at $34,000.00 all inclusive.
[19] Thus, my order on costs is that the plaintiff shall pay to the defendant costs fixed at $34,000.00 all inclusive.
Maddalena J.
Released: March 4, 2016
CITATION: Gigone v. Siao, 2016 ONSC 1555
COURT FILE NO.: 1118/10
DATE: 2016/03/04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Franco Gigone, carrying on business under the firm name and style of Capital Investments & Contracting
Plaintiff
- and –
Dr. San Siao, also known as Dr. Sou San Siao and carrying on business under any or all of Peace Bridge Dental Care, Oracare, Oracare Dental and Peace Bridge Dental
Defendants
COSTS ENDORSEMENT
Maddalena J.
Released: March 4, 2016