Court File and Parties

Court File No.: CV-13-479472 Date: 2017-06-26 Ontario Superior Court of Justice

Between: MICHELLE GOODWIN, MICHAEL GOODWIN, VANESSA GOODWIN and REBECCA GOODWIN by their Litigation Guardian MICHAEL GOODWIN, Plaintiffs Counsel: Jerome Morse, for the Plaintiffs

- and -

MENDEL ROBERT NADEL, Defendant Counsel: Nada Nicola-Howorth, for the Defendant

Heard: In Chambers Before: The Honourable Justice C.D. Braid

Costs Endorsement

I. Overview

[1] The defendant brought a motion for summary judgment on the basis that the action was brought outside the limitation period. The plaintiffs relied on the principle of discoverability to resist the motion.

[2] For the reasons set out in Goodwin v. Nadel, 2017 ONSC 1641, I dismissed the motion for summary judgment. I have now received written submissions with respect to costs.

II. Analysis

[3] The plaintiffs were successful on the motion and are entitled to costs.

[4] The plaintiffs argue that they are entitled to substantial indemnity costs in the amount of $39,179.61 or partial indemnity costs in the amount of $27,305.80. Both figures are inclusive of HST and disbursements.

[5] The defendant argues that partial indemnity costs of $20,000, plus reasonable disbursements, would be appropriate.

[6] In determining quantum, the court is to consider the factors set out in Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as well as s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. I have considered both of these factors.

[7] I have also considered the principles in Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.). The fixing of costs should reflect what the court views as a fair and reasonable amount to be paid, rather than any exact measure of the actual costs to the successful litigant.

[8] I am not satisfied that the plaintiffs are entitled to costs on a substantial indemnity basis. The defendant did not act unreasonably or in bad faith in bringing the summary judgment motion.

[9] On the motion, the parties filed affidavits and supporting documents; transcripts of cross-examinations; factums; and books of authorities. The issues were factually complex. The legal issues were of moderate complexity. The two most important factors are the principal of indemnity, and the amount of costs that the unsuccessful party could reasonably have expected to pay in the event he was unsuccessful.

[10] I have reviewed the detailed Bills of Costs and written submissions of the parties. I find that a fair and reasonable award of costs, on a partial indemnity basis, is $20,000, plus HST of $2,600 and disbursements of $3,000.

III. Conclusion

[11] Dr. Nadel shall pay costs to the plaintiffs in the amount of $25,600, inclusive of taxes and disbursements. These costs are payable forthwith.

Braid, J.

COURT FILE NO.: CV-13-479472 DATE: 2017-06-26 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: MICHELLE GOODWIN, MICHAEL GOODWIN, VANESSA GOODWIN and REBECCA GOODWIN by their Litigation Guardian MICHAEL GOODWIN Plaintiffs

• and – MENDEL ROBERT NADEL Defendant COSTS ENDORSEMENT CDB

Released: June 26, 2017