NEWMARKET COURT FILE NO.: CV-16-125248-00 DATE: 20160425
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
2235512 ONTARIO INC., and SANTA MARINELLA INC. Applicants/Respondents on Motion
– and –
2235541 ONTARIO INC., JOE D’ERCOLE, TONY DE MARCO, UNIVERSALCARE CANADA INC., UNIVERSALCARE HOME HEALTH INC., UNIVERSALCARE HEALTH SERVICES INC., UNIQUE CARE PRODUCTS INC., 2247960 ONTARIO INC., POTUS LIVING INC., POTUS DUFFERIN NORTH INC., POTUS PROPERTIES INC., and MAJOR MACKENZIE GROUP INC. Respondents/Moving Party on Motion
Counsel: M. Farace and R. Del Vecchio, for the Applicants R. Staley and J. Bell, for the Respondents, 2235541 Ontario Inc., Joe D’Ercole and Tony De Marco
HEARD: February 18, 2016
RULING ON COSTS
DOUGLAS J.
[1] On March 18, 2016 I released my Ruling on Motion argued before me on February 18, 2016.
[2] The moving parties (2235541, D’Ercole and De Marco) sought orders removing Miller Thomson as lawyers of record for the Applicants and prohibiting Miller Thomson from acting as counsel for the Applicants or their shareholders in any dispute involving UniversalCare and its shareholders and principals.
[3] In the result I ordered that Miller Thomson be removed as counsel of record for the Applicants in this proceeding but I declined prohibiting Miller Thomson from acting as counsel for the Applicants or their shareholders in any dispute involving UniversalCare and its shareholders and principals.
[4] The moving parties seek costs on a partial indemnity basis in the amount of $12,365.80 in accordance with a costs outline provided with their written submissions.
[5] The Applicants submit that the moving parties are not entitled to costs as they achieved only partial success on their motion and it was appropriate for the Applicants to contest the removal of their lawyers of choice.
[6] Ultimately my costs award should reflect a fair and reasonable amount based on all the circumstances (see Boucher v. Public Accountants Counsel for the Province of Ontario, 2004 71 OR 3d 291 (C.A.)).
[7] Rule 57.01 (1) of the Rules of Civil Procedure sets out the factors I may consider in exercising my discretion under s. 131 of the Courts of Justice Act. I will comment specifically on some of those factors although I consider all of them in rendering my decision.
[8] The moving parties engaged three lawyers on this motion, Mr. Staley (called to the Bar 1987), Mr. Bell (called to the Bar 2008), and Ms. Shneer (called to the Bar 2014). Approximately 38 hours of work is represented in the Bill of Costs. I am not surprised by the expenditure of time as although the issue before me was relatively straight forward, the factual matrix within which it arose was anything but.
[9] The issues were of considerable importance to all parties.
[10] A significant consideration on this issue must be the mixed success on the motion. As indicated above, I concluded that the moving parties had overreached in their prayer for relief in the motion by seeking an order from this court that would decide the issue of conflict of interest in other and future proceedings. This factor must temper the result.
[11] There are no offers to settle of which I have been made aware.
[12] Had the moving parties been entirely successful on the motion, the quantum of costs sought would not be outside an appropriate range; however, to reflect the partial success on the motion, I award costs fixed in the amount of $6,000.00 all inclusive.