Citation and Court Information
CITATION: Niro v. Societa Caruso, 2016 ONSC 660
COURT FILE NO.: A-12891-15
DATE: 2016-01-27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Peter Niro
Applicant
– and –
Societa Caruso
Respondent
COUNSEL:
John Michael Bray, for the Applicant
Gerard E. McAndrew, for the Respondent
HEARD: January 26, 2016
RULING ON Costs
GAUTHIER J.
[1] On December 21, 2015, I dismissed the respondent’s Motion to strike out the application, or to convert the application to an action.
[2] I am now dealing with costs of that motion.
[3] The applicant, who was successful on the motion, seeks costs in the amount of $5,085. The respondent requests that I order costs in the cause.
Applicant’s Position:
[4] The applicant submits that: (a) as he was successful on the motion, costs should follow the event, (b) the motion was not a simple procedural motion, (c) responding to the motion required review of the extensive materials filed in connection with the application itself, and (d) the motion has unnecessarily delayed the adjudication of the application itself.
Respondent’s Position:
[5] The respondent puts forward several arguments: (a) the motion was a simple, procedural motion, (b) the motion material was straight-forward, consisting of a Notice of Motion and a one page Affidavit attaching documents which were not new, and already formed part of the Application Record. The respondent’s responding record consisted of a Notice of Motion requesting dismissal of the motion and an Affidavit, which I found to be non-compliant with the Rules of Civil Procedure, and which I did not take into consideration when assessing the merits of the motion, (c) the respondent did not deliver a Factum of Book of Authorities, (d) the hearing of the motion itself required less than one hour, (e) the respondent has not complied with the provisions of Rule 57.01 (5) and (6) in that a Costs Outline was not provided, nor was a proper Bill of Costs, and (7) the amount claimed for the motion is excessive.
Analysis:
[6] I agree with all of the respondent’s submissions.
[7] Firstly, a review of the Endorsements leading up to the hearing of the motion discloses that it was always anticipated that the motion would be a short motion, i.e. requiring less than one hour for argument.
[8] The hearing of the motion itself was one hour or less.
[9] While the motion may well have necessitated a review of the application material, that material was the applicant’s own material, not the respondent’s. The motion record did not include any new material.
[10] The applicant’s responding material was sparse: a Notice of Motion requesting the dismissal of the motion, supported by an Affidavit that did not conform to the Rules of Procedure. The applicant delivered no Factum or Book of Authorities, despite my endorsement of October 26, 2015, that Books of Authorities would be required on the motion.
[11] The time spent on the hearing of the motion itself was modest. The time spent by the applicant’s counsel is disproportionate to the nature and potential outcome of the motion. The motion was procedural in nature, and not, in my view, of such complexity as to require the extensive review and preparation for which considerable costs are claimed.
[12] The material filed by the applicant for the costs hearing is defective.
[13] It does not comply with the Rules of Civil Procedure. The Costs Submission delivered is not a substitute for a proper Costs Outline in Form 57B. Although the Costs Submission does touch upon certain of the factors that a court is to consider, as set out in the Costs Outline, it does not specify the actual rate charged by counsel, nor the partial indemnity rate claimed. It contains no certification of counsel as Form 57B requires.
[14] The Bill of Costs submitted by the applicant is also non-compliant with the Rules. Rule 57.01(5) is mandatory (“shall”), and provides that a Bill of Costs is to be in Form 57A. That form requires dockets or other evidence of the time spent to be attached. Dockets were not provided, despite a request for same by the respondent.
[15] Because of all of these factors, the respondent requests that costs be in the cause.
[16] While the respondent’s suggestion holds some appeal, given my conclusions regarding the complexity of the motion itself, the disproportionality of the time expended, and the shortcomings of the materials for the costs hearing, nonetheless, I am not satisfied that such order is the appropriate one to make in the circumstances.
[17] The applicant was successful. The adjudication of the application has been delayed as a result of the respondent’s motion (although this factor may have more relevance to the ultimate costs consideration following adjudication of the application).
[18] It is more expeditious and practical for me to deal with the costs of this motion at this stage.
[19] The factors I have reviewed will impact on the quantum of costs to which the applicant is entitled.
[20] After having considered all of the circumstances, I conclude that the applicant should be awarded costs in the amount of $1,000 as a fair and reasonable amount for costs. In accordance with the provisions of Rule 57.03(1)(a), those costs are to be paid within 30 days.
The Honourable Madam Justice Louise L. Gauthier
Released: January 27, 2016
CITATION: Niro v. Societa Caruso, 2016 ONSC 660
COURT FILE NO.: A-12891-15
DATE: 2016-01-27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Peter Niro
Applicant
– and –
Societa Caruso
Respondent
RULING ON costs
Gauthier J.
Released: January 27, 2016