Court File and Parties

COURT FILE NO.: C-1041-13 DATE: 2017/01/19 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Shawna Barrie, Plaintiff AND: TD Insurance Meloche Monnex, Jane Doe, Brian R. Book, Julie Anne Book and Jade E. Book, Defendants

BEFORE: The Honourable Mr. Justice D. J. Gordon

COUNSEL: Charles E. Gluckstein, Counsel for the Plaintiff Geoffrey H. Yu, Counsel for the Defendant, TD Insurance Meloche Monnex Cindy L. Dickinson, Counsel for the Defendants, Brian R. Book and Jade E. Book

Supplementary Endorsement Re: Costs

[1] The plaintiff sought leave to appeal to Divisional Court from an order granted by Harper J. on September 14, 2016. That order addressed the plaintiff’s refusals regarding questions at her examination for discovery. The motion was heard in writing pursuant to r. 62.02(2) of the Rules of Civil Procedure. In my reasons for decision, released December 8, 2016, I dismissed the leave motion and invited written submissions on the issue of costs.

[2] The defendants are presumptively entitled to an award for costs as they were entirely successful on the motion. Mr. Yu and Ms. Dickinson each request partial indemnity costs. I agree that is the appropriate scale of costs; however, I am most concerned with the amounts sought. In their respective bill of costs, Mr. Yu claims $7,758.05, Ms. Dickinson $6,048.11, both inclusive of HST and disbursements.

[3] Mr. Gluckstein submits there should be no cost awards as his client is impecunious. No evidence was tendered in support of this position. The plaintiff has paid the prior cost award. Regardless, given the nature of this case, and the motions in particular, I am not persuaded this is a relevant consideration.

[4] Undertaking and refusal motions are, for the most part, relatively straightforward matters. Harper, J. awarded costs of $1,500.00 on that motion. The subsequent leave to appeal motion is even more straightforward. Yet substantial time is recorded by counsel for the defendants. Mr. Yu, for example, says 38.1 hours was required for legal research and 22.5 hours to draft documents. Unacceptable. Ms. Dickinson’s time allocations are more reasonable, although slightly high, having regard to the additional time needed to settle the original order.

[5] Costs must be fair and reasonable, having regard to the factors set out in r. 57.01 of the Rules of Civil Procedure. In my view, partial indemnity costs cannot exceed $3,000.00 for fees on a motion for leave to appeal in writing as in this case. I would also allow an additional $500.00 to Ms. Dickinson to settle the original order. Disbursements and HST would be in addition.

[6] In result, costs are awarded to the defendants on a partial indemnity basis, payable by the plaintiff within 30 days, as follows:

a) TD Insurance - $3,799.88; and b) Book’s - $4,262.64.

D. J. Gordon J. Date: January 19, 2017