CITATION: Janik v. Stillman and Janik v. Olszowy, 2016 ONSC 7783
COURT FILE NO.: 100/13 and 20/15
DATE: 2016-12-12
ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: 100/13
B E T W E E N:
ANDRZEJ JANIK
Plaintiff
R. Kennaley, for the Plaintiff/ Moving Party
- and -
PAUL M. STILLMAN
Defendant
J. Margie, for the Defendant/ Responding Party
Court File No.: 20/15
B E T W E E N:
ANDRZEJ JANIK
Plaintiff
- and -
THE ESTATE OF ANTHONY OLSZOWY, DECEASED
Defendant
R. Kennaley, for the Plaintiff/ Moving Party
J. Campbell, for the Defendant/ Moving Party
HEARD: In Writing
The Honourable Justice C.D. Braid
RULING ON COSTS
[1] Andrzej Janik sued two lawyers in two separate actions. Janik sued Paul Stillman first (“the Stillman action”). In his statement of defence, Stillman denied responsibility and blamed another lawyer, Anthony Olszowy. However, Stillman did not advance a third party claim. Janik initially denied that Olszowy was responsible, but sued him in a separate, later action (“the Olszowy action”).
[2] Motions for summary judgment were brought in both actions. At the direction of the court, these motions were argued together.
[3] The court found that Stillman was liable in tort and contract for breach of his duty of reasonable competence and diligence as Janik’s solicitor. In the Stillman action, judgment was granted in favour of Janik in the amount of $212,478.84 plus prejudgment interest. The court dismissed the Olszowy action. Reasons for Judgment are found at Janik v. Stillman and Janik v. Olszowy, 2016 ONSC 1801.
[4] I have now received written submissions with respect to costs.
A. The Stillman Action
[5] The plaintiff, Janik, was successful in the Stillman action and is entitled to costs.
[6] Janik served an offer to settle dated August 6, 2015, for $210,000 inclusive of interests and costs. The offer was open until trial, and was better than the judgment of $212,478.84 plus interest and costs. The defendant did not make an offer to settle.
[7] Janik submits that the cost consequences of Rule 49.10 of the Rules of Civil Procedure apply in his favour. Janik argues that he ought to be entitled to partial indemnity costs to the date of the offer and substantial indemnity costs thereafter, for a total of $80,361.50.
[8] Stillman argues that the hours and fees claimed are excessive. To the extent that some work was related to Olszowy, I find that those amounts claimed were appropriate because of the factual overlap between the actions.
B. The Olszowy Action
[9] The action against Olszowy was dismissed. There were no offers to settle in that action. Therefore, Olszowy is entitled to partial indemnity costs.
[10] Olszowy seeks partial indemnity costs of $41,708.
C. Factors Considered in Determining Costs
[11] In determining quantum, the court is to consider the factors set out in Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as well as s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. I have considered those factors.
[12] I have also considered the principles in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.). The fixing of costs should reflect what the court views as a fair and reasonable amount to be paid, rather than any exact measure of the actual costs to the successful litigant.
[13] On the summary judgment motions, the parties filed extensive affidavits and supporting documents; transcripts of cross-examinations; factums; and books of authorities. The issues were factually complex. The legal issues were of moderate complexity. The choice of the summary judgment process reduced the overall costs somewhat, although the motions took three full days. The two most important factors are the principal of indemnity, and the amount of costs that the unsuccessful parties could reasonably have expected to pay in the event they were unsuccessful.
[14] Having reviewed the detailed Bills of Costs submitted by Janik and Olszowy, I find that the overall number of hours spent is reasonable and the rates claimed are commensurate with counsel’s experience. Counsel for Olszowy charged a reduced hourly rate. The overall costs are appropriate and reasonable.
[15] I have come to the conclusion that a fair and reasonable award of costs to be paid by Stillman to Janik is $75,000. I have also come to the conclusion that a fair and reasonable award of costs to be paid by Janik to Olszowy is $40,000.
D. Is This an Appropriate Case for a Sanderson or Bullock Order?
[16] Janik asks the court to impose a Sanderson or Bullock Order, which would effectively make Stillman responsible for Olszowy’s costs. A Sanderson Order requires the unsuccessful defendant to pay the successful defendant’s costs directly. A Bullock Order requires the unsuccessful defendant to reimburse the plaintiff for the successful defendant’s costs.
[17] A Sanderson or Bullock order can be granted where the defendants are named in different proceedings, so long as the facts otherwise meet the threshold test for such an order. The plausibility of the claim against both defendants is one of the factors to consider when determining whether a Bullock or Sanderson order is appropriate: Moore et al. v. Wienecke et al., 2008 ONCA 162.
[18] Janik did not believe that Olszowy was responsible. Janik admitted key facts that disposed of the action against Olszowy, and this demonstrates that Janik did not have a plausible case against Olszowy.
[19] Stillman is not a party to the Olszowy action. Stillman tried to shift the responsibility to Olszowy; however, it was Janik who ultimately chose to start a separate action rather than add Olszowy as a defendant in the Stillman action.
[20] I find that it would not be just to make a Sanderson or Bullock order. I therefore decline to do so.
E. Conclusion
[21] In the Stillman action, Stillman shall pay costs to Janik in the amount of $75,000, inclusive of taxes and disbursements. In the Olszowy action, Janik shall pay costs to Olszowy in the amount of $40,000, inclusive of taxes and disbursements. These costs are payable forthwith.
Braid, J.
Released: December 12, 2016
CITATION: Janik v. Stillman and Janik v. Olszowy, 2016 ONSC 7783
COURT FILE NO.: 100/13 and 20/15
DATE: 2016-12-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ANDRZEJ JANIK
Plaintiff
- and -
PAUL M. STILLMAN
Defendant
ANDRZEJ JANIK
Plaintiff
- and –
THE ESTATE OF ANTHONY OLSZOWY, DECEASED
Defendant
REASONS FOR JUDGMENT
CDB
Released: December 12, 2016