CITATION: Jon Jessie William Driscoll v. Driscoll et al., 2017 ONSC 6079
COURT FILE NO.: 14-30082
DATE: 2017/10/11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jon Jessie William Driscoll
Applicant
– and –
Caroline Driscoll, Deanna Fleck, and Jean Gilbert
Respondents
COUNSEL:
Christopher A. Moore, for the Applicant
Richard S. Nishimura and Douglas G. Menzies, for the Respondents
HEARD: September 5, 2017
ENDORSEMENT AS TO costs
o’bonsawin J.
[1] The Respondents, Ms. Driscoll, Ms. Flack and Ms. Gilbert (“Driscoll et al.”) brought a motion for an Order requiring the Applicant, Mr. Driscoll, to attend at an examination in aid of execution. I ordered Mr. Driscoll to attend at the examination and ordered the production of certain documents. In my Endorsement, I invited the parties to make written costs submissions if they could not come to an agreement on the issue of costs. The parties did not come to an agreement and provided me with their Submissions on Costs, Costs Outlines, and case law. This is my Endorsement on the issue of costs.
[2] Driscoll et al. seek payment of costs from Mr. Driscoll on a substantial indemnity basis for the motion. Mr. Nishimura’s year of call is 2004 and Mr. Menzies is 1982. Driscoll et al. state that the full indemnity amount is $9,089.95 and the partial indemnity basis at 66% is $6,108.26. The amounts claimed include the preparation and attendance for the motion, the preparation and attendance at Mr. Menzies’ cross-examination. The amounts claimed appear to be reasonable with the exception of the preparation of the Costs Submissions and the Bill of Costs and Mr. Menzies’ attendance at cross-examination. In McDonald v. Anishinabek Police Service, 2006 37598 (ON SCDC), 83 O.R. (3d) 132, 276 D.L.R. (4th) 460 (Div. Ct.), the Divisional Court concluded that it is not reasonable to award costs for the preparation of the costs submission unless there are unusual circumstances related to the task. In this case, there are no unusual circumstances and Driscoll et al. cannot receive costs for the preparation of the Costs Submission and the Bill of Costs.
[3] Mr. Driscoll argues that pursuant to the Factum provided by Driscoll et al., they sought significantly more than what I ordered. More particularly, they sought an order that all exhibits of Mr. Menzies’ cross-examination are inadmissible as evidence that was not granted. A significant portion of the Factum and the authorities were devoted to this issue.
[4] Mr. Driscoll submits that Driscoll et al. inappropriately included in their costs time spent by Mr. Menzies who was cross-examined. They rely on City Front Developments Inc. v. Toronto District School Board, 285 D.L.R. (4th) 187, 2007 21595 (Ont. S.C.). In this matter, Belobaba J. concluded that City Front could not charge fees for the services for the lawyers that provided affidavits or testified as witnesses. I agree and conclude that Mr. Menzies cannot charge his time for the cross-examination that he attended as a witness.
[5] Lastly, Mr. Driscoll argues that the overall costs being claimed are unreasonable given the relatively simple nature of this proceeding.
[6] A successful party is presumptively entitled to costs in a reasonable amount (Boucher v. Public Accountants Council for the Province of Ontario, 71 O.R. (3d) 291, 2004 14579 (C.A.) [Boucher]). The amount awarded is intended to be fair and reasonable for the unsuccessful party, but not fixed by the actual costs incurred by the successful party (Boucher, at paras. 24, 26).
[7] The court has discretion to award costs pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (Goldman v. Weinberg, 2017 ONSC 4743, at para. 4 (citing Chandra v. CBC, 2015 ONSC 6519)). Rule 57.01(1) sets out a number of factors to be considered in determining costs.
[8] Parties often argue that costs should follow the event. This was confirmed in Schreiber v. Mulroney, 160 A.C.W.S. (3d) 53, 2007 31754 (Ont. S.C.), at para. 2. Substantial indemnity costs are the exception to the rule.
[9] I have taken into consideration the factors in rule 57.01(1), for example, the matter was not complex, the issues were important to Driscoll et al., and the conduct of the parties was not inappropriate. I have also considered the case law provided to me by the parties. Consequently, I exercise my discretion and award reasonable costs in the amount of $4,500.00 payable by Mr. Driscoll to Driscoll et al. within 30 days of this Endorsement.
Justice M. O’Bonsawin
Released: October 11, 2017
CITATION: Jon Jessie William Driscoll v. Driscoll et al. 2017 ONSC 6079
COURT FILE NO.: 14-30082
DATE: 2017/10/11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
John Jessie William Driscoll
Applicant
– and –
Caroline Driscoll, Deanna Fleck, and Jean Gilbert
Respondents
ENDORSEMENT AS TO COSTS
O’Bonsawin J.
Released: October 11, 2017