Court File and Parties

COURT FILE NO.: CV-16-0223 DATE: March 10, 2017 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: FERNANDO AND MARIA MASSALIN, Applicants AND: OSCAR GARCIA, MARIA BARCHUK and LA COMPANIA, Respondents

BEFORE: THE HONOURABLE MADAM JUSTICE M. E. VALLEE

COUNSEL: Ms. A. Chapman, Counsel, for the Applicants Mr. D. Saverino, Counsel, for the Respondents

HEARD: In Writing

Costs Endorsement

[1] The applicants brought this proceeding for an order to recover furniture and for payment of damages. Success was divided. I ordered that the respondent return the furniture; however, no amount was allowed for the damages claim.

[2] Earlier in the proceedings, the applicants brought a motion to file three further affidavits after cross-examination. The motion judge found that they had not provided an adequate explanation for why the evidence was not initially included. The test was not met. The motion judge made an order permitting them to file one affidavit but only for the purposes of attaching one document which was not made an exhibit at a cross-examination. Accordingly, the applicants were unsuccessful on this motion.

[3] The motion judge reserved costs to the application judge.

[4] The parties served offers to settle. The respondents’ offer was to return all of the furniture. Costs of the motion and application were to be fixed on a partial indemnity basis. The applicants’ offer was to accept $5,000 from the respondents as general damages and $20,000 for costs.

[5] If the applicants had accepted the respondents’ offer, they would have received their furniture and had their partial indemnity costs for the entire proceeding. Instead, they proceeded with the application. The result for the applicants was as favourable as the respondents’ offer.

[6] The respondents state that as a result of the offer, the applicants are entitled to their costs on a partial indemnity basis, up to June 14, 2016, the date of the respondents’ offer. The respondents state that they are entitled to their costs on a partial indemnity basis after June 14, 2016. Based on the provisions of Rule 49.10(2) of the Rules of Civil Procedure, I agree.

[7] The applicants’ first bill of costs was not detailed. It showed partial indemnity costs of $20,157 for the entire proceeding. It did not provide dates when the work was done. For example, it included a general paragraph which stated, “reviewing transcripts, motion records, affidavit evidence” among other things and then simply listed the hours spent by counsel and two other staff members. As a result, I could not determine the value of the work done before June 14, 2016. In addition, I could not determine the value of work done for the motion. On December 2, 2016, I requested that both counsel provide detailed bills of costs clearly indicating the parties’ costs up to June 14, 2016 and their costs after that date.

[8] The applicants then provided a bill of costs for each period; however, the total was not consistent with the first bill of costs. For example, partial indemnity costs up to the June 14, 2016 offer are shown to be $15,352. Partial indemnity costs for the rest of the proceedings are shown to be $9,462. When added together, they amount to $24,814, which is $4,657 greater than $20,157, the amount in the first bill of costs for the entire period. Given this discrepancy, the amounts in the applicants’ breakdown are not helpful; however, they do show that approximately 62 percent of the applicants’ costs are attributable to the period up until the date of the offer.

[9] The respondents’ first bill of costs shows total partial indemnity costs of $11,074 for the entire proceeding. Subsequently, the respondent provided only a bill of costs for the period up to June 14, 2016 which shows partial indemnity costs of $5,932. I conclude that the respondents’ partial indemnity costs after June 14, 2016 is the difference, being $5,142. In addition, the respondent requests partial indemnity costs for the motion of June 13, 2016 in the total amount of $3,864. The respondents request $9,006 in total.

[10] Using the applicants total for partial indemnity costs for the entire proceeding in their first costs outline and applying 62 percent, I conclude that the applicants’ costs up to the date of the offer are $12,500. Nevertheless, this amount includes costs for the applicants’ motion. The applicants are not entitled to these costs. The applicants did not provide a breakdown of costs for the motion. Subtracting $3,864, the amount requested by the respondent for the motion, results in a total of $8,636.

[11] I have reviewed the rates of counsel and others as shown on the bills of costs as well as the hours spent and find them to be acceptable. In applying the principles of fairness and reasonableness as set out in Boucher v. Public Accountants, 71 O.R. (3d) 29, and considering proportionality, I find that the applicants are entitled to costs of $8,636 and the respondents are entitled to costs of $9,006. Given the small difference, no costs are payable by either party.

VALLEE J. Date: March 10, 2017