Court File and Parties

Newmarket Court File No.: CV-14-117784-00 Date: 20170116 Superior Court of Justice – Ontario

Re: Michael Graziano, Terri Graziano, Jasmine Graziano, Michael Graziano and Elizabeth Graziano, Plaintiffs And: Kristopher Michael Ciccone, Defendant

Before: The Honourable Mr. Justice P.W. Sutherland

Counsel: David J. Levy, for the Plaintiffs James E. Dunn, for the Defendant

Heard: In Writing

Endorsement on Costs

Overview

[1] On November 16, 2016, this civil jury trial was to commence. It was scheduled for at least three weeks of trial. There were 12 days left in the fall sittings.

[2] A request for an adjournment was sought. The defendant wished to file seven expert reports. The defendant submitted that these expert reports were critical to his case. These seven reports were not served in compliance with Rule 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[3] The plaintiffs did not strenuously oppose the request for an adjournment and requested that if the trial is to be adjourned, the plaintiffs also be granted leave to file a response to some or all of the seven reports served.

[4] The trial was adjourned by me with a timetable. The plaintiffs request costs thrown away. It was agreed that submissions on costs would be in writing. Each party was given 30 days to serve and file their written submission and the plaintiffs were given seven days to file a reply after receipt of the submissions of the defendant.

[5] I have received the written submissions and below is my decision on costs thrown away.

Position of the Parties

[6] The plaintiffs seek costs thrown away in the amount of $48,154.01 payable forthwith. The plaintiffs’ position is that the trial was adjourned at the request of the defendant to file seven expert reports late. The plaintiffs incurred costs “thrown away” to be ready to proceed with the trial. A jury was selected. The plaintiffs had to have their witnesses called, prepared and ready to give evidence, given that the plaintiffs’ evidence is heard first. The plaintiffs do acknowledge that not all the costs they incurred constitute costs thrown away but contend that a reasonable amount of costs they should receive is 75% of the substantial indemnity amount.

[7] The defendant argues that there should be no costs awarded or costs should be left to the trial judge to determine. The defendant contends that the trial was adjourned due to lack of days available in the trial sittings and that there were no costs incurred that qualify as costs thrown away. Further, if the court is going to award costs thrown away, the amount claimed by the plaintiffs is excessive and cannot be determined due to the lack of information contained in the plaintiffs’ bill of costs. The bill of costs is not detailed and specific on exactly the work performed to quantify costs thrown away.

Legal Principles and Analysis

Costs Thrown Away

[8] Costs thrown away essentially is a request that a party’s costs for trial preparation which have been wasted and trial preparation that will have to be redone as a result of the adjournment of the trial. The purpose of the awarding of costs thrown away is not to penalize a party who sought an adjournment of the trial or was at fault for the adjournment of the trial due to a mistrial, but its intent is to indemnify a party for the wasted time incurred for trial preparation or trial work arising from the adjournment or mistrial: Pittiglio v. Pittiglio, 2015 ONSC 3603, paras. 5 and 6; Curley and Porter v. Six Nations Police Commission et al, 2016 ONSC 3797; Middleton v. Jaggee Transport Ltd., 2014 ONSC 3041; Hossny v. Belair Insurance Co., 2010 ONSC 102; Caldwell v. Caldwell, 2015 ONSC 7715.

[9] Costs that are recoverable for costs thrown away are essentially on a full or substantial indemnity basis to compensate the party that incurred the costs full recovery of the wasted costs incurred: Pittiglio, supra; Curley, supra; Middleton, supra; Hossny, supra; Caldwell, supra.

[10] Courts have reviewed the costs requested and fixed an amount the court found to represent costs thrown away: Pittiglio, supra; Middleton, supra; Hossny, supra; Caldwell, supra, or have taken an approach that of giving a discount of 50% of the amount of costs requested due the speculative nature of the assessing of costs thrown away: Curley, supra; Straume v. Battarbee Estate.

[11] In examining cases in which costs thrown away were given, Quinlan J., in Caldwell, supra, at para. 9, determined that there are three general categories. These three categories are:

(a) The first category deals with fault where counsel, for example, neglected to call a witness or a last minute adjournment is required. In cases that fit this first category, the court will grant the adjournment on conditions, which include the payment of costs thrown away;

(b) The second category is where the trial is adjourned because of court scheduling problems or I would add, unforeseen events such an illness of a party, lawyer or witness or an emergency such as a personal emergency, health issue or death in a family. In these circumstances, no costs are awarded because no party bears responsibility for the adjournment; and

(c) The third category deals with an adjournment request by one of the parties due to no fault on that parties’ part. Costs thrown away are still awarded against the party applying for the adjournment even though there is a lack of fault.

[12] Quinlan J. noted that in the third category the Alberta Queens Bench in Goddard v. Day, 2000 ABQB 799 stated:

The third category…is really one of responsibility for the adjournment as opposed to fault or lack of fault…situations where someone is responsible for an adjournment, but cannot be faulted for that responsibility…[B]eing responsible for an adjournment…carried it a costs consequences.

[13] In this case, I do find that the plaintiffs are entitled to costs thrown away. The jury trial was ready to proceed, as far as the plaintiffs were concerned. The jury was selected. Costs were incurred to be ready to proceed. The request for the adjournment of the trial was fundamentally due to the defendant’s request to file seven expert reports which were critical to the defendant’s case. There were only 12 days left in the trial sittings but the request for the adjournment of the trial was not due to the remaining days left in the trial sittings. If the trial did commence, I suspect, both counsel would have requested that the trial continue until completed and court time would have had to be found, if the trial did not finish in the trial sittings. The result, in all likelihood, would have been that counsel and I would have to re-arrange are schedules to complete the trial.

[14] Accordingly, I find that the circumstances of this case fall within category one, that is, the adjournment was due to the fault of the defendant to serve his critical expert reports pursuant to Rule 53.03.

[15] At a minimum, the actions of the defendant were responsible for the adjournment if not at fault. No request of an adjournment would have been made if not for the request of the seven expert reports by the defendant.

[16] Thus, whether the actions of the defendant falls within category one (fault) or category three (responsibility), costs thrown away are still entitled to be awarded. In no way was the adjournment of the jury trial due to the actions of the plaintiffs.

Amount of Costs Thrown Away

[17] The plaintiffs’ bill of costs is not detailed to the extent that this court can, with specificity, ascertain the work performed in the bill of costs.

[18] The assessment of costs thrown away is not a task of precision. It is not a scientific endeavour. It is speculative and intuitive. The court is required to review the bill of costs carefully to ascertain what work intuitively falls within the category of costs thrown away as wasted time and what work does not.

[19] I do not agree that a discount should be given on the amount claimed, without some analysis by this court, of the amounts claimed for costs thrown away. However, I do agree that a discount is appropriate, given the speculative and intuitive nature of assessing costs thrown away.

[20] Having said that, I will now turn to the bill of costs presented by the plaintiffs.

[21] The plaintiffs’ bill of costs has three categories. None of the categories detail, specifically, the time incurred and the specifics of the task for which the time was incurred. From my review and the lack of detail of the bill of costs, there is no question that some of the amounts requested do have work that is not wasted time. The plaintiffs, in their submissions, acknowledge as much. However, the plaintiffs submit that a discount of 25% should be given on the substantial indemnity amount.

[22] I do not accept this approach of the plaintiffs. This approach in effect states that a party can create a bill for costs with an amount that the party deems fit without the court having the ability to assess, with detail, and discount with a percentage. To do so, I find, abrogates the courts function to assess costs thrown away.

[23] In reviewing the three categories, I find that:

1. Correspondence. The figure is not detailed. 7.2 hours in correspondence for wasted time is claimed with no detail. I find it hard to accept that 7.2 hours of wasted time in correspondence was incurred. I allow one hour for Mr. Levy and 1.5 hours to Mr. Winkler for a total of $950.
2. Investigation, Witness Preparation. There is again no detail of time incurred and for what purpose. I cannot determine that the time incurred was wasted time that constitutes costs thrown away. I therefore give no amount for this category.
3. Preparation for Trial, Witness and Document Preparation, Attendance at Trial & Costs Submissions. Again, no detail was provided. I will agree that there is wasted time for trial preparation, witness preparation, attendance for trial and jury selection and the costs submissions. The claim is for 134.8 hours between three lawyers for an amount of $39,910.50. I fail to see wasted time for document preparation. The same documents will be used at the trial. With no specifics, I cannot come to any other conclusion. Given the two days of time wasted for jury selection and attendance to adjourn the trial, some trial preparation that would certainly have been wasted and the preparation of the cost submissions, I fix the amount at $20,000.

[24] Now given the intuitive and speculative nature of costs thrown away and especially in the circumstances of this case given the lack of detail, I find a discount is appropriate and find a discount in the amount of 35% appropriate. I find a 35% discount in the circumstances is appropriate due to the analysis of the bill of costs performed and the lack of detail provided.

[25] For fees, therefore, I fix at $20,950 times 65% for a total of $13,617.50 plus HST.

[26] Turning to the disbursements requested, I do not find that process servers, including summons to witness, photocopies, prints, postage, scanning, or conduct money are disbursements thrown away. I provided an order that all witness summoned for the trial are bound over to the date this trial is called. Further, there is no indication the purpose for the photocopies or prints that cannot be used at the trial. Thus, I find that there is no wasted cost for these items and that these items can be used in the pending trial.

[27] I will allow costs in the amount of $2,061.24 which constitute the costs incurred for the expert to prepare for the trial, attendance expense for attendance for the jury selection and the adjournment of the trial.

When the Costs Thrown Away Should Be Paid

[28] The purpose of costs thrown away is to compensate for work incurred that cannot be utilized. The defendant caused the trial to be adjourned. The defendant should reimburse the plaintiffs for time incurred that has been wasted. I do not accept the submissions that the costs thrown away should not be paid until the end of the trial. To accede to that submission, in my opinion, would be contrary to the purpose of awarding costs thrown away, that is, to indemnify a party for wasted time and trial preparation that will have to be redone.

[29] I therefore reject the submission of the defendant and find that costs thrown away should be paid within 30 days.

Disposition

[30] I order that the defendant pay costs thrown away to the plaintiffs in the amount of $17,449.02 inclusive of HST and disbursements within 30 days.

Justice P.W. Sutherland Released: January 16, 2017