Court File and Parties

Court File No.: CV-15-99-00 Date: 2017 March 13 Ontario Superior Court of Justice

Between: SLAVA KUSHNIR, Plaintiff – and – JAMIE MACARI and CP REIT ONTARIO PROPERTIES LIMITED, Defendants

Counsel: Warren WhiteKnight, for the Plaintiff S. Daniel Baldwin, for the Defendant, Jamie Macari

Heard: written submissions

Before: MacLeod-Beliveau, J.

Costs Endorsement

[1] The plaintiff seeks costs of the contested motion heard January 12, 2017 in Kingston, Ontario. In my decision released February 3, 2017, indexed as Kushnir v. Macari, 2017 ONSC 307, the defendants were successful in having two independent medical examinations ordered, but on terms as substantially argued for by the plaintiff to ensure that the experts’ reports were written solely by their author, as more particularly set out in the decision.

[2] The plaintiff seeks costs on a partial indemnity basis of $6,336.14. This sum is composed of $5,438.00 in fees, HST of $706.94 and disbursements of $191.20.

[3] The defendants seek costs on the motion as they were successful in obtaining an order for the medical assessments and the final order did not specifically refer to no ghost writing as sought by the plaintiff.

[4] The defendants seek costs on a partial indemnity basis of $4,953.78. This sum is composed of $4,096.80 in fees, HST of $532.58 and disbursements of $324.40.

[5] Costs are discretionary and should follow the event. Both the plaintiff and the defendants claim success on the motion. I find that success was divided. Neither party obtained the full order that they were seeking in the final result. However, I find that the plaintiff was more successful than the defendants and therefore entitled to some award of costs in all the circumstances of this case.

[6] There was never any issue that the defendants were entitled to the two independent medical examinations. This was consented to by the plaintiff on the motion. Both parties were found equally responsible for the cancellation fee as outlined in my decision. The central issue on the motion were the conditions of the medical assessments to ensure that the reports were written solely by their author. The plaintiff’s position on this issue I found to have merit and could not be addressed by the terms submitted by the defendants. I found however that the plaintiff’s suggested conditions went too far and as such they were moderated in the final result.

[7] I have carefully considered the various relevant factors set out in Rule 57 in relation to an award of costs. The motion took one half day to argue. Both parties had reasonable positions. Success was divided and not clear cut. Generally the plaintiff was more successful than the defendants on the motion. The parties, however, had legitimate differences of opinion on the novel issues in this case that had not been previously litigated. The issues were important to the parties and to the litigation bar in general. The time spent by both counsel and their hourly rates were reasonable and appropriate. An award of costs in favour of the plaintiff is appropriate to reflect the measure of partial success achieved by the plaintiff, but not in the full amount claimed.

[8] In the exercise of my discretion, I award the plaintiff the sum of $2,700.00 in fees and HST of $351.00 for a total of $3,051.00 in fixed costs payable by the defendants to the plaintiff within 30 days. Each party shall be responsible for their own disbursements.

Honourable Madam Justice Helen MacLeod-Beliveau Released: March 13, 2017