Court File and Parties

COURT FILE NO.: CV-12-109796 DATE: 20170519 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Filomena Pace and Angelo Pace, Plaintiffs AND: F & F Supermarkets Inc., Defendant

BEFORE: Justice M.L. Edwards

COUNSEL: Mr. Richard C. Belsito, Q.C., Counsel for the Plaintiffs Mr. Todd J. McCarthy, Counsel for the Defendant

HEARD: In-Writing

Costs Endorsement

[1] Counsel have requested that I deal with the question of costs that arise out of the Plaintiffs’ acceptance of the Defendants Offer to Settle dated May 17, 2016. The Offer to Settle provides in paragraphs 1 and 2 as follows:

1. The Defendant shall pay to the Plaintiffs the sum of $50,000 for all damages, inclusive of interest and inclusive of any OHIP subrogated claim;
2. The Defendant shall pay the Plaintiffs their partial indemnity costs, HST and disbursements to the date of the Offer to Settle to be agreed upon or assessed

[Emphasis added]

[2] I have received written submissions and a Bill of Costs from the Plaintiff, as well as a letter from defence counsel, Mr. McCarthy, setting forth his position with respect to costs, which I will review in greater detail.

[3] In coming to the conclusion that I ultimately do, I note that the Offer to Settle provides for an agreement of costs or that the costs will be “assessed”. In assessing costs, Rule 58.06 of the Rules of Civil Procedure applies. This is not a case where the Court is fixing costs in accordance with Rule 57.01 of the Rules of Civil Procedure. While the factors in Rule 58.06 and Rule 57.01 are somewhat different, I am of the view that the result that I ultimately come to would be the same result whether I was fixing costs or assessing costs.

[4] Fundamentally, the principle that this Court must apply is as set forth in the decision of the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario, where the Court of Appeal makes clear that costs must be fair and reasonable, when considered from the perspective of the unsuccessful party in terms of what the unsuccessful party could reasonably expect to pay for costs.

[5] In Mr. Belsito’s initial Bill of Costs, he provided to me a breakdown of the costs for the entirety of the proceedings. Those costs total $54,190 plus HST, and disbursements of approximately $12,000. The total Bill of Costs asserted on behalf of the Plaintiff was approximately $73,000 inclusive of HST.

[6] I requested Mr. Belsito to provide me with a breakdown of his costs up to the date of the offer, and then subsequent to the date of the offer. In my view this is an important distinction given that the offer to settle, which was accepted, provides that the Defendant would pay the Plaintiffs partial indemnity costs to the date of the Offer to Settle.

[7] Mr. Belsito provided the breakdown establishing that prior to the acceptance of the offer costs had been incurred in the amount of approximately $31,000, and subsequent to the date of the offer in the amount of approximately $23,000. I did not receive a breakdown with respect to disbursements incurred prior to the offer versus subsequent to the offer. The original Bill of Costs establishes that at least one disbursement, the medical report of Dr. Chang, may have been incurred subsequent to the date of the offer.

[8] In Mr. McCarthy’s written submissions, it is suggested that the appropriate assessment should be in the amount of $25,000 all-inclusive. It is argued that the Plaintiffs should not be entitled to any “costs holiday”, and specifically that the Plaintiffs should not be entitled to any costs incurred subsequent to the date of the offer. Mr. McCarthy relies on a decision of Nordheimer J. in Rosero v. Huang (1999), 44 O.R. (3d) 669. Mr. McCarthy also argues that proportionality suggests that the Plaintiffs should not be entitled to the quantum of costs claimed in a situation where the offer was accepted in the amount of $50,000.

[9] In assessing the costs entitlement of the Plaintiffs to the date of the Offer to Settle, I in no way question the hours that were expended by Mr. Belsito and his staff. The total costs incurred, both pre and post-offer, however, in my view are somewhat disproportionate to the ultimate result in this case, reflected in the Plaintiffs’ acceptance of $50,000. Recognizing the principles that I must apply, reflected in Boucher, supra, as well as the provisions of Rule 58.06, I am of the view that the appropriate costs for which the Defendant should be responsible are those costs incurred up to the date of the offer, which I am fixing in the amount of $22,500 plus HST. As for the disbursements, to be consistent with this determination the disbursements that the Plaintiff should be entitled to are those disbursements incurred up to the date of the offer. As I do not have a breakdown of what those disbursements are, I leave it to counsel to resolve that issue. If they cannot resolve the issue, I should be provided with a list of the disbursements that are in issue and I will resolve that issue by telephone conference call.

Justice M.L. Edwards Date: May 19, 2017