CITATION: Goldman v. Weinberg, 2017 ONSC 4743

COURT FILE NO.: CV-11-441961

DATE: 20170808

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AARON GOLDMAN, Plaintiff/Respondent

AND:

JEFFREY WEINBERG, OAK RIDGES MEDICAL CLINIC, TAMMY VARSAMIS, TRACEY INGRAM, ORLA GARRIQUES, JESSICA MA, KELLY KIRKWOOD, JOHN SPANTON, BANK OF MONTREAL, NICK HAWRYLYSHYN, REGIONAL MUNICIPALITY OF YORK POLICE SERVICES BOARD, FIONA BRUCE, SCOTT McKAY, KEITH MOXLEY, VICTOR DABUZINSKAS, MICHELLE POWELL, HUNTER SMITH, JOANNE BENNETT and TORONTO POLICE SERVICES BOARD, Defendants/Applicants

BEFORE: Ferguson J.

COUNSEL: Joseph Kary, for the Plaintiff/Respondent

Stephen Ronan, for the Defendants/Applicants

HEARD: In writing

ENDORSEMENT ON COSTS

[1] I have received costs submissions from counsel for the applicants. Despite follow-up with counsel for the respondent granting an extension of time, I received no costs submissions on behalf of the respondent.

[2] On May 19, 2017 I heard the summary judgment motion brought by the moving defendants against the remaining plaintiff, Aaron Goldman. Summary judgment was granted.

[3] The applicant seeks costs on a partial indemnity basis in the amount of $14,025.50 for the action and $14,550.00 for the motion totaling $28,577.50.

Law of Costs

[4] In Chandra v. CBC, 2015 ONSC 6519 the court set out the following applicable principles for dealing with costs at paras. 15-17:

15. The general principles to be applied in fixing costs are conveniently articulated in Agius v. Home Depot Holdings Inc., 2011 ONSC 5272, at paras. 10-12, as follows:

Cumming J. in DUCA Financial Services Credit Union Ltd. v. Bozzo, 2010 ONSC 4601 at para. 5, described the “normative approach” to an application for costs:

Costs are in the discretion of the Court: s. 131, Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 57.01 of the Rules of Civil Procedure. In Ontario, the normative approach is first, that costs follow the event, premised upon a two-way, or loser pay, costs approach; second, that costs are awarded on a partial indemnity basis; and third, that costs are payable forthwith, i.e. within 30 days. Discretion can, of course, be exercised in exceptional circumstances to depart from any one or more of these norms.

Fixing of costs is not merely a mechanical exercise in reviewing the receiving party’s Cost Outline. In Andersen v. St. Jude Medical Inc. (2006), 2006 CanLII 85158 (ON SCDC), 264 D.L.R. (4th) 557, the Divisional Court set out several principles to be considered in making an award of costs:

1. The discretion of the court must be exercised in light of the specific facts and circumstances of the case in relation to the factors set out in rule 57.01(1): Boucher [Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291], Moon [Moon v. Sher (2004), 2004 CanLII 39005 (ON CA), 246 D.L.R. (4th) 440], and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 2005 CanLII 1042 (ON CA), 75 O.R. (3d) 638 (C.A.).

2. A consideration of experience, rates charged and hours spent is appropriate, but is subject to the overriding principle of reasonableness as applied to the factual matrix of the particular case: Boucher. The quantum should reflect an amount the court considers to be fair and reasonable rather than any exact measure of the actual costs to the successful litigant: Zesta Engineering Ltd. v. Cloutier (2002), 119 A.C.W.S. (3d) 341 (Ont. C.A.), at para. 4.

3. The reasonable expectation of the unsuccessful party is one of the factors to be considered in determining an amount that is fair and reasonable: rule 57.01(1)(0.b).

4. The court should seek to avoid inconsistency with comparable awards in other cases. “Like cases, [if they can be found], should conclude with like substantive results”: Murano v. Bank of Montreal (1998), 1998 CanLII 5633 (ON CA), 41 O.R. (3d) 222 (C.A.), at p. 249.

5. The court should seek to balance the indemnity principle with the fundamental objective of access to justice: Boucher.

The Court of Appeal has identified the overriding principle to be that the amount of costs awarded be reasonable in the circumstances. In Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 Epstein J.A. stated at paras. 51-52:

As can be seen, the overriding principle is reasonableness. If the judge fails to consider the reasonableness of the costs award, then the result can be contrary to the fundamental objective of access to justice. Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant. In Boucher, this court emphasized the importance of fixing costs in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding at para. 37, where Armstrong J.A. said “[t]he failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice.”

16. As Mark Orkin in The Law of Costs, 2nd ed., loose-leaf (Aurora, Ont.: Canada Law Book, 2010) reminds us (at para. 201) awarding costs is an exercise in balancing two principles:

…One, that a successful party to litigation who is free of blame should not be required to bear the costs of either prosecuting or defending the action, and two, that citizens will be unduly hesitant to assert or defend their rights in court if an unsuccessful party is required to bear all of the costs of a successful one.

17. The principle of indemnification is no longer the only purpose of costs awards. There is recognition that modern costs awards may encourage settlement, prevent (or at least discourage) frivolous or vexatious litigation, or sanction behaviour that increases the expense of litigation.

[5] In fixing costs, the trial judge is not engaged in simply a mechanical exercise. She is not conducting an assessment and applying a tariff, but rather making a judicial determination using her best judgment, with some regard paid to what might occur on an assessment. She is not to scrutinize docket entries, but to consider the nature and factual and legal complexity of the case and the preparation for efficient use of court time. The goal is to reach a fair and reasonable costs award.

Boucher v. Public Accountants Counsel (Ontario), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)

Eagleson v. Dowbiggan (1996), 4 C.P.C. (4th) 55 (Ont. Gen. Div.)

De Bonth v. Revenue Properties Co. (1996), 46 C.P.C. (3d) 93 (Ont. Gen. Div.)

[6] The Rule 57.01 factors applicable in this case are the principle of indemnity; the amount of costs that an unsuccessful party could reasonably expect to pay; the amount claimed; the complexity of the proceedings; and the importance of the issues. Costs should also be proportionate.

[7] The moving defendants submit that there are no exceptional circumstances in this case that would alter the usual principle that costs follow the event. Success was not divided as the claim against the moving defendants was dismissed in its entirety. The moving defendants were required to proceed with the motion in order to have the claim finally disposed of.

[8] The action languished for many years with little to no steps being taken by the plaintiff. The plaintiff did not deliver an affidavit of documents and examinations for discovery were never completed during the lengthy period. The moving defendants were put through over 5 years of litigation expenses when they had zero liability to the plaintiff.

[9] The moving defendants further point out that the motion was consistently delayed due to the repeated adjournment requests made by the plaintiff. Counsel for the moving defendants was required to attend civil practice court on 6 occasions to deal with the various adjournment requests. Plaintiff’s counsel did not commit to arguing the motion on behalf of the plaintiff until the motion date of May 12, 2017. Counsel for the moving defendants was prepared to proceed on that date and costs were incurred of having to prepare on more than one occasion. An additional factum was delivered on May 18, 2017 that had to be dealt with.

[10] The moving defendants point out that the plaintiff was provided with many opportunities to resolve the action on a without costs basis but insisted on proceeding. The possibility was communicated to plaintiff’s counsel and no response was ever provided. The moving defendants concede that these offers were not made under Rule 49.10 however submit that the court can take them into account pursuant to Rule 49.13.

[11] I agree that the time and expense incurred on behalf of the moving defendants is reasonable. The motion for summary judgment was brought in order to minimize costs of defending the action through to trial. A more junior counsel and a clerk were used to prepare materials for the motion. Further as stated in Risorto v. State Farm 2003 CanLII 43566 (Ont. SCJ) p 9, the role of the court on a costs disposition is not to “second guess” successful counsels on time spent.

[12] The responding plaintiff (“Aaron Goldman”) is to pay the sum of $25,000.00 all-inclusive to the moving defendants, payable forthwith.

J. Ferguson, J.

Date: August 8, 2017