CITATION: Powell v. Maisuria, 2017 ONSC 2833
COURT FILE NO.: CV-16-552608
DATE: 2017 05 08
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CANDACE POWELL – and – TERENCE MAISURIA, KOSHINI MAISURIA, and INTACT INSURANCE COMPANY
BEFORE: LEMAY J.
COUNSEL: C. Finlay, for the Plaintiff
P. Pollack, for the Defendants, Koshini Maisuria and Terence Maisuria
COSTS ENDORSEMENT
[1] This was a motion to transfer an action from Toronto to Brampton. The Plaintiff was successful in resisting the motion, and the action remained in Toronto. I am now required to fix the costs in this matter.
[2] The costs should be assessed in the context of the relevant facts. The Plaintiff was prepared to consent to a transfer of this action from Toronto to Brampton on a without costs basis. The Defendants rejected that offer and were seeking costs for the motion of $1,000.00 even if the motion did not have to be argued.
Positions of the Parties
[3] The Plaintiff is seeking her costs in the sum of $1,775.26 inclusive of HST and disbursements for the following reasons:
a) The Plaintiff was successful on the motion.
b) The Plaintiff adopted a reasonable approach to the motion.
c) The costs incurred by the Plaintiff are reasonable, and within the expectations of the parties.
[4] The Defendant asserts that the Plaintiff should not be entitled to costs at all for the following reasons:
a) The Plaintiff should not have prepared responding materials as she had consented to the motion to transfer.
b) The Plaintiff has failed to serve an Affidavit of Documents.
c) The amount claimed by the Plaintiff is unreasonable.
Analysis
[5] The relevant factors for an assessment of costs are set out in Rule 57.01. First, and most importantly, there is the question of which party was successful. It is clear in this case that the Plaintiff was successful in resisting the motion to transfer this action from Toronto to Brampton. As a result, the Plaintiff should be entitled to costs of this motion.
[6] The fact that the Plaintiff was prepared to consent to a motion to transfer does not mean that she should be denied costs for having opposed the motion when it was argued. The Plaintiff was prepared to consent only if the motion was without costs. The Defendants adopted an aggressive position and sought costs. As a result, the Plaintiff quite reasonably decided that she would oppose the motion and was successful. The Defendants should not profit from their overly aggressive stance on the motion, and the Plaintiff should not be deprived of costs because she was reasonable.
[7] Indeed, the analysis of the parties respective positions suggests that the Plaintiff should be entitled to a higher level of costs from the Defendants. Certainly, the relative conduct of the parties favours an award of costs to the Plaintiff.
[8] The Defendant argues that the Plaintiff should not be entitled to costs because the Plaintiff has not yet delivered a proper Affidavit of Documents. This might well be a compelling argument if this were the Plaintiff’s motion to transfer. However, it is the Defendants’ motion, and the Defendants controlled the timing of the motion. If the Defendants had wanted a complete Affidavit of Documents before bringing this motion, they could have brought a motion in Toronto seeking that relief. This argument does not assist the Defendants in resisting costs.
[9] This brings me to the reasonable expectations of the parties in the costs. The Defendants were seeking, as a compromise, to resolve this matter prior to hearing the motion. Their compromise position was that the Plaintiff would consent to the Defendants’ motion to transfer and would pay the Defendants’ costs of $1000.00 inclusive of HST and disbursements. This compromise did not take into account the costs of preparing for and actually arguing the motion.
[10] In the circumstances, therefore, it is clear that total costs of $1,500.00 inclusive of HST and disbursements were within the reasonable expectation of the parties. I am of the view that $1,500.00 inclusive of HST and disbursements is the amount that should be paid by the Defendants to the Plaintiff. I am of the view that this was a straightforward enough matter that the costs should not exceed $1,500.00 all inclusive.
Disposition
[11] In the result, I order the Defendants Koshini and Terence Maisuria to pay the Plaintiff her costs of this motion in the sum of $1,500.00 inclusive of HST and disbursements within thirty days of the release of this endorsement.
LeMay J.
DATE: May 8, 2017
CITATION: Powell v. Maisuria, 2017 ONSC 2833
COURT FILE NO.: CV-16-552608
DATE: 2017 05 08
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CANDACE POWELL – and – TERENCE MAISURIA, KOSHINI MAISURIA, and INTACT INSURANCE COMPANY
BEFORE: LEMAY J.
COUNSEL: C. Finlay, for the Plaintiff
P. Pollack, for the Defendants, Koshini Maisuria and Terence Maisuria
ENDORSEMENT
LeMay J.
DATE: May 8, 2017