Music and Beyond Performing Arts v. van Duyvenbode
CITATION: Music and Beyond Performing Arts v. van Duyvenbode 2016 ONSC 7359
COURT FILE NO.: 15-63307
DATE: 2016/11/24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MUSIC and BEYOND PERFORMING ARTS Plaintiff
AND
NICO van DUYVENBODE Defendant
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: John E. McDonnell, for the plaintiff James B. Barnes, for the defendant
HEARD: Written Submissions
COSTS ENDORSEMENT
[1] The plaintiff was unsuccessful on its motion for an order that $33,900 paid by the plaintiff into Court be paid out to on the basis of the failure of the defendant to comply with the September 2014 order of Minnema J. The parties were not able to settle the issue of costs of the motion. I received written submissions on behalf of the parties.
[2] The only costs to be addressed are those for the motion argued before me on May 10, 2016. In paragraph 51 of my endorsement, there is reference to “costs of the plaintiff’s motions”. The reference to “motions” as opposed to “motion” is the result of a typographical error.
[3] The defendant seeks costs of the motion on a substantial indemnity basis in the amount of $15,000. That amount is calculated as follows:
Solicitor-client fees $ 14,513.75
Substantial indemnity (90%) $ 13,062.38
HST on fees $ 1,698.11
Disbursements $ $245.76
HST on disbursements $ 31.95
$ 15,038.20[^1]
[4] The defendant requests that costs be payable in the ordinary course, reflecting his success on the motion.
[5] The plaintiff seeks to defer the determination on the issue of costs for as long as is possible. The plaintiff’s primary position is that costs of the motion be fixed by the trial judge, following a determination of the action and counter-claim. The alternative submission made on behalf of the plaintiff is that if costs are awarded to the defendant, they be payable in the cause, or as a final alternative, in any event of the cause. As to the scale of costs, the plaintiff submits that costs be awarded, if at all, on a partial indemnity basis.
[6] The plaintiff’s position is that it should not be penalized by an award of costs if it ultimately succeeds in its claim against the defendant. Success for the plaintiff, if achieved in this matter, will result in the payment to the plaintiff of the $33,900 it paid into Court. I agree with the plaintiff that there exists the potential for a ‘penalty’ if the plaintiff was required to pay costs following the motion and yet it ultimately succeeds in securing the payment out of the $33,900.
[7] However, balanced against the potential for such a penalty is the fact that the motion before me was the plaintiff’s third attempt to obtain an order for payment out of Court of the $33,900. I appreciate that the plaintiff is a not-for-profit organization and that the sum of money involved is significant to the plaintiff. Nonetheless, for the defendant to have to respond a third time to the same request – even though based on different grounds – is in my view excessive.
[8] I conclude that the defendant is entitled to his costs of the motion payable in the cause.
[9] The scale on which costs are to be paid is to be determined and the quantum of costs payable is to be fixed. As noted in my endorsement, both parties are responsible for the delay in this litigation. The matter has not moved beyond the pleadings stage since February 2015. Had one or both of the parties moved the matter forward in a timely manner, the plaintiff might not have made the decision to attempt a third time to secure an order for payment of the $33,900 out of Court.
[10] Regardless of the delays in the litigation generally, I find that there has been no conduct on the part of the plaintiff with respect to the matter argued before me to warrant an award of costs on a substantial indemnity basis. Costs are therefore awarded on a partial indemnity basis.
[11] The fee portion of partial indemnity costs claimed is $8,700.[^2] When disbursements and HST are added to that amount, the total claimed is $10,120.[^3]
[12] Taking into consideration the factors set out in rule 57.01 of the Rules of Civil Procedure,[^4] I find that a reasonable amount for costs on a partial indemnity basis is $5,000.
[13] In summary, the defendant is awarded his costs of the motion on a partial indemnity scale in the amount of $5,000 and payable in the cause.
Madam Justice Sylvia Corthorn
Date: November 24, 2016
CITATION: Music and Beyond v. van Duyvenbode 2016 ONSC 7359
COURT FILE NO.: 15-63307
DATE: 2016/11/24
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: MUSIC and BEYOND PERFORMING ARTS Plaintiff
AND
NICO van DUYVENBODE Defendant
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: John E. McDonnell, for the plaintiff James B. Barnes, for the defendant
COSTS ENDORSEMENT
Madam Justice Sylvia Corthorn
Released: November 24, 2016
[^1]: Rounded off to $15,000. [^2]: $8,708.25 = $14,513 x 0.6. The total is rounded to $8,700. [^3]: $10,120 = ($8,700 × 1.13) + ($246.76 + $31.95). [^4]: R.R.O. 1990, Reg. 194.