Court File and Parties

COURT FILE NO.: CV-13-494353 DATE: 20160815 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

GEORGIA TSITSOS, HARALABOS TSITSOS and STEVEN TSITSOS Plaintiffs/Defendants by Counterclaim – and – KAKOULI POKA Defendant/Plaintiff by Counterclaim

Counsel: Gregory Graham, for the Plaintiffs/Defendants by Counterclaim George Corsianos, for the Defendant/Plaintiff by Counterclaim

HEARD: WRITTEN SUBMISSIONS

Costs Endorsement

DIAMOND J.:

[1] In my Endorsement released on July 26, 2016, I granted the plaintiffs’ Rule 39.02(2) motion for leave to file an affidavit after cross-examinations were completed (‘the leave motion”), and dismissed the plaintiffs’ Rule 44.01(1) motion for interim recovery of personal property (“the recovery motion”).

[2] Absent an agreement between the parties, I asked for costs submissions to be exchanged and filed with my assistant. I have now received and reviewed those costs submissions.

[3] Dealing first with the leave motion, while that motion was technically brought under Rule 39.02(2) of the Rules of Civil Procedure, in my view it was necessitated by the fact that (a) both parties erroneously believed that filing the bail affidavits in this proceeding would amount to a breach of a publication ban, and (b) counsel for the defendant took the position on his client’s cross-examination that he would need to report counsel for the plaintiffs to the Law Society of Upper Canada if the bail affidavits were produced in this litigation (another erroneous, and frankly unwarranted, position).

[4] Counsel for the plaintiffs assumed that he could ask questions arising from the bail affidavits on the defendant’s cross-examination, and rightfully so. The parties had treated the bail affidavits as Schedule “B” productions up to that point. While the defendant submits that the proper course of action would have been for the plaintiffs to move on those specific refusals, in my view the result of such a motion before a Master would have been essentially the same as my disposition of the leave motion, thus entitling the plaintiffs to their costs associated with that relief.

[5] Accordingly, I find that the plaintiffs are prima facie entitled to their costs of the leave motion. Of note, I am not prepared to order those costs payable on substantial indemnity basis as requested by the plaintiffs, as I believe that the positions taken by counsel for the defendant on his client’s cross-examination were based upon a mistaken view of the law, and not rooted in any of the traditional aggravating factors supporting the higher scale of costs.

[6] With respect to the recovery motion, while that motion was ultimately dismissed, as per paragraph 34 of my Endorsement I certainly had some difficulty with the defendant’s evidence filed in response to that motion. That said, I was not satisfied that the plaintiffs discharged their heavy burden as required by the relevant jurisprudence, and reserved the inherent credibility issues to be ultimately determined by the trial judge.

[7] The plaintiffs originally obtained the right to interim possession by way of an ex parte order, which was then set aside on consent of the parties. The plaintiffs waited approximately two years to renew their request for interim possession. Typically, seeking interim possession is driven by some form of urgency and I agree with counsel for the defendant that as the piano had remained at the property during that entire time period, there was no real basis for an immediate need of the piano by the plaintiffs.

[8] Accordingly, I find that the defendant is prima facie entitled to her costs of the recovery motion on a partial indemnity basis.

[9] As always, I am mandated to consider what is “fair and reasonable” in fixing costs with a view to balancing compensation of a successful party with a goal of fostering access to justice: Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.).

[10] I have reviewed the parties’ respective Bills of Costs filed in support of each motion. Both Bills of Costs seem to overreach. For example, on the leave motion counsel for the plaintiffs claims 15 hours relating to the preparation and attendance at the defendant’s cross-examination. On the recovery motion, counsel for the defendant claims 7 hours relating to the preparation and attendance of the plaintiffs, along with 11 hours spent reviewing the plaintiffs’ Sixth Supplementary Motion Record and preparing a responding affidavit. Obviously, the time spent dealing with the issues on the leave motion and recovery motion formed only a portion of the total time claimed by the parties.

[11] Both the plaintiffs and the defendant takes the alternative position that given the shared result on these motions, each party should bear their own costs incurred to date related to the leave motion and the recovery motion. I agree. Given that there was mixed success, there shall be no order as to costs for both the leave motion and the recovery motion.

Diamond J. Released: August 15, 2016