Court File and Parties

CITATION: Menzel v. Makagon, 2017 ONSC 6180

COURT FILE NO.: CV-17-569013

DATE: 2017-10-02

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Owen Menzel, Plaintiff

AND:

Elena Makagon, Defendant

BEFORE: Madam Justice Jasmine T. Akbarali

COUNSEL: A. Ottaway, for the moving party/plaintiff

K. Hashmi, for the responding party/defendant

HEARD: October 02, 2017

ENDORSEMENT

[1] The parties have resolved the motion to strike. Significant portions of the defence and the entirety of the counterclaim are removed. What remains is costs.

[2] The responding party says a consent order should not attract costs, relying on Breault v. Dinnen, 2016 ONSC 4955. Dinnen was a motion to consolidate in family law proceedings.

[3] I prefer the reasoning in Colistro v. Tbay Tel, 2013 ONSC 5952, where the court found that it is fair to award costs of a consent motion where it was reasonable to bring the motion, and for costs incurred in preparing, serving and filing the motion.

[4] The responding party argues the motion was not necessary. It consented to the relief sought and would have done so without the motion. However, the significant costs are not the costs of preparing the motion record, which is very thin and contains no evidence. It was the cost of analyzing the pleadings, identifying what should be struck and doing so with regard to the relevant law.

[5] These issues should have been canvassed by the responding party’s counsel before the pleading was prepared. In the end, the moving party did the work at its cost. Costs are thus properly owing.

[6] However, costs must be fair and reasonable, taking into account the factors laid out in r. 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, including the principle of indemnity, the reasonable expectations of the losing party and whether any step in the proceeding was unnecessary: Boucher v. Public Accountants Council (Ontario), 2004 14579 (ON CA), [2004] O. J. No. 2634. (C.A.).

[7] The responding party argues that the moving party’s costs are excessive. I agree. The moving party seeks partial indemnity costs of the counterclaim of $4,383.90 plus $277.25 in disbursements, and partial indemnity costs of the motion of $3,607.18, or almost $9,000 in costs. The time claimed includes significant time for research, considering strategy and taking instructions from senior counsel. In my view, no reasonable unsuccessful party would expect to pay this amount in costs.

[8] The responding party suggests $500 for costs in the cause is more appropriate. In my view this does not recognize the work the moving party was put to as a result of the responding party’s poorly constructed pleading. Nor do I see any reason to award costs in the cause.

[9] In my view costs of $5,000.00 are fair and reasonable, inclusive of H.S.T. and disbursements.

Akbarali J.

Date: October 02, 2017.