Court File and Parties
CITATION: Ghazi-Daryani v. Gibsons LLP, 2016 ONSC 2290
COURT FILE NO.: 08-CV-43115/10-49948
DATE: 20160405
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Masoumeh Ghazi-Daryani, Applicant/Plaintiff
AND
Gibsons LLP and D. Kenneth Gibson, Respondents/Defendants
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: John J. Cardill, for the Applicant/Plaintiff
John Parr Telfer, for the Respondents/Defendants
HEARD: By written submissions
costs ENDORSEMENT
[1] I dismissed the Plaintiff’s motion to amend her pleadings at the outset of the trial which was to have commenced on January 18, 2016. Having regard to the nature of the amendments sought and the late disclosure of documents from the Plaintiff, the trial had to be adjourned and the motion to amend was argued. In the interim, the Plaintiff served an amended motion record seeking an additional eight items of relief.
[2] The Defendant seeks costs of the motion on a partial indemnity basis in the amount of $14,265.12, and costs thrown away for trial preparation on a substantial indemnity basis in the amount of $16,432.80 plus disbursements of $451.77.
[3] As for the costs thrown away, Defence counsel restricts his claim to the period between January 12 and January 18 after a pre-trial meeting was held between counsel. Defence counsel submits that Plaintiff’s counsel intentionally concealed his intention to make a claim for damages in order to gain the advantage of surprise. For this reason, he seeks costs on a substantial indemnity basis.
[4] The Plaintiff submits that the costs of her motion to amend should be “in the cause.” Plaintiff’s counsel notes that when I settled the order, I granted eight of the nine substantive orders sought by the Plaintiff save for the order requesting amendment of the prayer for relief. For this reason, the Plaintiff argues that costs should be left to the trial judge after the full record is developed and determined at trial.
[5] In the alternative, the Plaintiff submits that the total amount of time claimed, namely 52.5 hours is grossly excessive, and any costs award to the Defendant should be offset against any award granted at trial in favour of the Plaintiff and be payable only after trial.
[6] The Plaintiff maintains that she was always prepared to proceed to trial. She also maintains there is no good reason that she should be liable for the costs thrown away and that there is no evidence that the trial preparation time will have to be repeated. Once again, the Plaintiff submits that the amount claimed is excessive and that the conduct complained of is not such as to attract costs on a full indemnity scale.
Analysis and Conclusion
[7] The Plaintiff sought significant amendments to amend her claim at the outset of trial. The motion had to be adjourned in order to give the Defendant an opportunity to respond. The trial of the issue could no longer proceed within the period of time originally allocated. I concluded that the Plaintiff’s new claim for damages was a fresh cause of action and was statute-barred. The other eight items of relief sought by the Plaintiff in the amended motion record were not contentious.
[8] The Defendant is entitled to his costs of the motion on a partial indemnity basis. Having regard to the factors set out in Rule 57.01, in particular, the importance of the issues, the relative complexity of the issues, and the amount that the Plaintiff could have reasonably been expected to pay, I fix the Defendants’ costs in the amount of $ 7,500.00 inclusive of HST and disbursements. These costs are payable in any event of the cause and are to be offset against any award payable to the Plaintiff after trial.
[9] I recognize that there is trial preparation time that will have to be duplicated, but I leave the issue of any costs thrown away to the trial judge.
Mr. Justice Robert N. Beaudoin
Date: April 5, 2016
CITATION: Ghazi-Daryani v. Gibsons LLP, 2016 ONSC 2290
COURT FILE NO.: 08-CV-43115/10-49948
DATE: 20160405
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Masoumeh Ghazi-Daryani, Applicant/Plaintiff
AND
Gibsons LLP and D. Kenneth Gibson, Respondents/Defendants
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: John J. Cardill, for the Applicant/Plaintiff
John Parr Telfer, for the Respondents/Defendants
costs ENDORSEMENT
Beaudoin J.
Released: April 5, 2016