CITATION: HAITAS v. HAITAS, 2017 ONSC 7172
COURT FILE NO.: CV-16-543801 (TORONTO)
MOTION HEARD: 2017 11 02
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Eleftherios Haitas v. Costantinos Haitas
BEFORE: MASTER R.A. MUIR
COUNSEL: Mark A. Russell for the plaintiff Harman S. Toor for the defendant
SUPPLEMENTARY REASONS FOR DECISION - COSTS
[1] I heard two motions in this action on November 2, 2017. The plaintiff and the defendant both brought motions seeking answers to questions refused or taken under advisement at the parties’ respective examinations for discovery.
[2] I released my reasons for decision on November 3, 2017. I ordered the defendant to answer all of the refused questions in issue from his examination for discovery. I ordered the plaintiff to answer five of approximately 26 refusals in issue from the plaintiff’s examination for discovery. I also requested written costs submissions. I have now received and considered those submissions.
[3] The plaintiff takes the position that he was the successful party on these two motions and is entitled to costs. The plaintiff argues that costs should be paid on an elevated scale on the basis of an offer to settle the motions made September 8, 2017. The plaintiff also relies on what the plaintiff describes as unreasonable conduct on the part of the defendant that resulted in increased costs. The plaintiff seeks $12,500.00 inclusive of HST and disbursements. The plaintiff’s partial indemnity costs are approximately $9,800.00 inclusive of HST and disbursements.
[4] The defendant takes the position that the plaintiff did not achieve a result as favourable as or more favourable than the offer to settle. The defendant also denies any unreasonable conduct. The defendant suggests there should be no order for the costs of these motions.
[5] The court’s general authority to award costs as between parties to litigation is found in section 131(1) of the Courts of Justice Act, RSO 1990, c C.43, which provides that costs are in the discretion of the court. Rule 57.01(1) of the Rules of Civil Procedure, RRO 1990, Reg. 194 (the “Rules”), allows the court to consider the result achieved in the proceeding or motion and any offer to settle. This Rule also includes a non-exhaustive list of factors the court may consider when awarding costs. Rule 1.04(1.1) is also applicable. It requires the court in applying the Rules to make orders that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding.
[6] When dealing with costs, the overall objective for the court is to fix an amount that is fair and reasonable for the unsuccessful party who generally must pay the costs of the successful party. See Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (ON CA), [2002] OJ No. 4495 (CA) at paragraph 4 and Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] OJ No. 2634 (CA) at paragraph 26. In Davies v. Clarington (Municipality), 2009 ONCA 722 the Court of Appeal stated as follows at paragraph 52:
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.
[7] Apart from the operation of Rule 49.10 (offers to settle), elevated costs should only be awarded on the basis of a clear finding of reprehensible conduct. See Clarington at paragraph 40.
[8] These are the factors and principles I have considered and applied in determining the costs of these motions.
[9] The plaintiff has been the successful party on these motions. He obtained all of the relief he was seeking on his motion and successfully opposed or limited most of the relief requested by the defendant.
[10] However, I am not prepared to award costs on an elevated scale. The plaintiff’s offer to settle contemplated that the defendant would answer all 12 of his refusals and the plaintiff would answer five of his disputed refusals. There would be no order for costs to either party.
[11] The plaintiff was successful in obtaining an order that the defendant answer all refused questions. I also ordered the plaintiff to answer five refused questions. However, four of those questions were not the questions the plaintiff offered to answer by way of his proposed settlement. I am therefore not satisfied that the plaintiff has obtained a result as favourable as or more favourable than the offer to settle as required by Rule 49.10. I agree with the defendant that the application of Rule 49.10 to non-monetary relief presents an extra level of complexity when comparing an offer to settle with the ultimate result. See Pankerichan v. Djokic, 2012 ONSC 3768 at paragraph 16. I am not satisfied that the plaintiff has met his onus under Rule 49.10(3).
[12] I agree with the plaintiff that the defendant’s approach to these motions added complexity and lengthened the proceeding to some degree. The defendant took several different positions with respect to the number of refusals in issue which required the plaintiff to incur additional preparation time. The plaintiff also had to respond to the defendant’s argument for divided production and discovery despite the defendant not seeking this relief in his notice of motion. All of this resulted in extra cost to the plaintiff. However, I do not view these actions as amounting to reprehensible conduct. In my view, they simply appear to be the result of an oversight and lack of clear communication. These factors do support the plaintiff’s claim for additional time as part of a partial indemnity costs award but they do not rise to the level required to justify costs on an elevated scale.
[13] As set out above, the plaintiff has been largely successful on these motions. The costs outline submitted by the plaintiff appears to be fair and reasonable in the circumstances of these motions. I note that the defendant did not provide the court with a costs outline and did not specifically take issue with the quantum of the plaintiff’s costs other than to simply state that the “costs requested are unreasonable”. However, there should be some reduction to the partial indemnity costs requested by the plaintiff given the lack of complete success.
[14] For these reasons I have concluded that it is fair and reasonable for the defendant to pay the plaintiff’s costs of these motions on a partial indemnity scale fixed in the amount of $7,000.00, inclusive of HST and disbursements. These costs shall be paid by January 2, 2018.
Master R.A. Muir
DATE: 2017 12 01