CITATION: Testani v. Hernandez, 2017 ONSC 6143

COURT FILE NO.: 11578/17

DATE: 2017/10/13

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Joseph Testani and Nancy Testani

Gregory Gryguc, for the Plaintiffs (Responding Party)

Plaintiffs

• and -

Edith Hernandez and Salvador Hernandez

Joseph M. Gottli, for the Defendants (Moving Party)

Defendants

The Honourable Justice T. Maddalena

DECISION ON COSTS

1I heard this long motion on August 15, 2017 and rendered my decision on September 11, 2017. I have now received and reviewed costs submissions from both parties.

The Position of the Defendants (Moving Party)

2The defendants, as the successful parties, claim substantial indemnity costs fixed at $37,000 all inclusive.

3In the alternative, the defendants claim costs on a partial indemnity basis fixed at $26,500 all inclusive.

4The defendants seek their costs payable forthwith or, alternatively, payable within 30 days.

The Position of the Plaintiffs (Responding Party)

5The plaintiffs submit that the costs claimed buy the defendants are excessive and not proportional to the matter which was before the court.

6The plaintiffs further submit that neither party should be awarded costs or, in the alternative, if costs awarded, they should be in a minimal amount.

Analysis

7This was a motion to set aside an earlier order of the court dated May 3, 2017.

8The order of May 3, 2017 was set aside, as I found the information provided by the plaintiffs to the court in the Notice of Sale under Mortgage was materially incorrect. I found, based on the evidence, that the plaintiffs were “careless and reckless” when they put their sworn, yet incorrect, information regarding the default of the mortgage before the court on May 3, 2017.

9It was clearly within the power of the plaintiffs to confirm the particulars of the default alleged by them. Had they done so, it is unlikely they would have brought their initial motion returnable May 3, 2017. Further, they did not check the accuracy of the position taken by them even after the motion materials of the defendants were served and filed. These materials presented clear evidence that the payments at issue were indeed made by the defendants. Had the plaintiffs checked this information, it is likely the motion, at least, would not have been argued and this would have reduced costs. Instead, the plaintiffs took the position at the argued motion that they did not know that the alleged payments had been made.

10The defendants were the successful parties and are, therefore, entitled to costs. Rule 57.01(1) of the Rules of Civil Procedure sets out those factors for the court’s consideration in an award of costs.

11Further, in the case of Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579, the court noted as follows at para. 24:

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 parties rather than any exact measure of the actual costs to the successful litigant.

12In para. 38, the court noted as follows:

In deciding what is fair and reasonable, as suggested above, the expectation of the parties concerning the quantum of a costs award is a relevant factor ….

13From a review of the bill of costs of the defendants, I conclude that the time and expense incurred on behalf of the moving party defendants was reasonable.

14The rates charged are not excessive given the 35-year experience of counsel who is certified by the Law Society as a specialist in construction law.

15Further, where feasible, the services of junior counsel, as well as law students, were utilized to reduce the costs.

16The disbursements, I conclude after a review, are reasonable.

17I agree with the defendants/moving party that, given the legal onus to act quickly and with due diligence in this matter, schedules had to be accommodated to act within a limited timeframe. This suggests substantial and concentrated preparation time.

18Counsel for the plaintiffs also provided a bill of costs. On a partial indemnity basis, the fees, disbursements and HST claimed are $17,049 (rounded). Further, on a substantial indemnity basis, fees and disbursement plus HST claimed are $23,000 (rounded).

19I do not find these unreasonable, but do note that counsel for the defendants was called to the bar in 2002.

20In the present case, the information provided to the court by the plaintiffs was clearly incorrect. They did not correct their positon even after clear evidence was provided to them that their information was incorrect. They chose to proceed to defend a position that was untenable. In this regard, they have a high degree of accountability for the legal costs of the defendants.

21Taking into account all of the factors in Rule 57.01(1) of the Rules of Civil Procedure, the principles of reasonableness and fairness, and the principle of proportionality, I award costs to the defendants payable by the plaintiffs fixed at $30,500 inclusive of fees and disbursements plus HST, payable within 30 days.

Order Made

22The following order is made:

The plaintiffs shall pay costs to the defendants fixed at $30,500 all inclusive, payable within 30 days.

Maddalena J.