CITATION: Sgromo v. Imperial Toy, LLC et al, 2017 ONSC 5975
COURT FILE NO.: CV-17-0102
DATE: 2017-10-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
PIETRO, PASQUALE-ANTONIO SGROMO (PETER, ANTHONY SGROMO)
Self-Represented
Plaintiff (Responding Party)
- and -
IMPERIAL TOY, LLC, PETER TIGER, ART HIRSH
D. Zulianello, for the Defendants (Moving Party)
Defendants (Moving Party)
HEARD: Via Written Submission
Mr. Justice T.A Platana
Decision On Costs
[1] The defendants were successful in their motion to obtain an order dismissing the plaintiff’s action on the basis of want of jurisdiction. I granted the parties the right to provide written submissions on costs. The defendants provided submissions that costs be awarded to them as the successful party, and that costs be awarded on a substantial indemnity basis, in the amount of $20,216.43, inclusive of disbursements and HST, or alternatively, on a partial indemnity basis in the amount of $17,122.11, inclusive of disbursements and HST.
[2] The plaintiff filed a Response to Costs, and took the position, relying on Rule 63, that costs were stayed, and declined to respond to the defendants costs submissions, taking the position that he preferred to reserve any response to the Court of Appeal in his appeal from the decision on the motion.
[3] An award of costs is a matter in the discretion of the judge by virtue of s. 131(1) of the Courts of Justice Act, which provides:
Subject to the provisions of an Act or rules of the court, the costs of and incidental to the proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid.
[4] In considering the factors governing the exercise of my discretion set out in Rule 57.01(1), I adopt the principles and factors commonly considered as set out in the decision of Shaw J. in Sgromo v. Polygroup International et al., 2017 ONSC 5324. As Shaw, J. noted:
[19] In Serra v. Serra (2009), 2009 ONCA 395, 66 R.F.L. (6th) 40 (Ont. C.A.), at p. 42, the Court of Appeal reiterated the fundamental purposes which modern costs rules are designed to foster, as set out in Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330 (Ont. C.A.), at para. 22:
(1) to partially indemnify successful litigants for the costs of litigation;
(2) to encourage settlement; and
(3) to discourage and sanction inappropriate behaviour.
[20] In Anderson v. St. Jude Medical Inc., 2006 85158 (ON SCDC), [2006] O. J. No. 508 (Ont. Div. Ct.), at para. 22, the Divisional Court set out the principles to be applied by the court in exercising its discretion (citations omitted):
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).
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. 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.
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)(O.b).
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.”
The court should seek to balance the indemnity principle with the fundamental objective of access to justice.
[21] The Court of Appeal has made it clear that in assessing costs the overriding principle is one of reasonableness and that the failure to follow that principle can produce a result that is contrary to the fundamental objective of access to justice (Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.), at p. 302.
[22] In Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 (Ont. C.A.), at para. 4 the Court of Appeal did not make a specific finding with respect to the amount of time spent or the rates charged by counsel, and stated:
“In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.”
[23] Rule 57.01(1) of the Rules of Civil Procedure provides:
57.01 (1) Factors in discretion - In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding; or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different solicitor; and
(i) any other matter relevant to the question of costs.
[24] Rule 1.04 (1.1) of the Rules of Civil Procedure provides:
1.04 (1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
[5] I state initially that there is no reason to depart from the general rule that a successful party is entitled to costs.
[6] The plaintiff filed two affidavits with a total of twenty exhibits attached thereto; a responding factum of twenty-five pages; a “replacement factum” of forty-three pages, and more than thirty case authorities.
[7] The hearing of the motion took approximately four hours.
[8] I consider that the hourly rates are reasonable.
[9] Considering the quantity of material filed, and the nature of the material, the plaintiff should have reasonably expected if costs were awarded against him, they would not be insignificant.
[10] While the pivotal issue was not complex, I accept that the plaintiffs filing of an “amended factum”, the number of exhibits filed and the numerous aspects of the affidavits, which in my view were not of relevance to the focal issue, made the motion more complex than was necessary for the determination of the issue.
[11] I do not consider that this complexity added to the length of the proceeding, other than I have accepted the time spent by defendants’ counsel to have been reasonable.
[12] While there may been an unnecessary adjournment when the plaintiff refused to agree to an adjournment after requesting a special date, I do not find that to be conduct which was vexatious or improper.
[13] This plaintiff was self-represented. While he cannot be expected to have a full understanding of the Rules of Civil Procedure, actions taken based on his understanding which required the defendants to spend time in replying must be considered.
[14] The determination of costs is in the discretion of the court. The overriding principle is one of reasonableness. Hours spent and hourly rates are but two of the factors to be taken into consideration in applying that principle. Although I have found the hourly rates to be reasonable, I note that the total time billed as fees is 94.95 hours which equates to approximately twelve 8 hour days. I find that time overall to be excessive. I find the disbursements claimed of $421.17 as based on a partial indemnity basis are reasonable.
[15] Considering the above noted factors, I am of the view that costs should be awarded on a partial indemnity basis, subject to my comments herein as to total time. I consider it fair and reasonable to award the defendants fees in the amount of $10,500.00, plus HST, and disbursements in the amount of $421.17, plus HST.
______”original signed by”
The Hon. Mr. Justice T. A. Platana
Released: October 5, 2017
CITATION: Sgromo v. Imperial Toy, LLC et al, 2017 ONSC 5975
COURT FILE NO.: CV-17-0102
DATE: 2017-10-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
PIETRO, PASQUALE-ANTONIO SGROMO (PETER, ANTHONY SGROMO)
Plaintiff (Responding Party)
- and -
IMPERIAL TOY, LLC, PETER TIGER, ART HIRSH
Defendants (Moving Party)
DECISION ON COSTS
Platana J.
Released: October 5, 2017
/sab