Court File and Parties

Citation: Ruttan v. Gear, 2017 ONSC 7251 Court File No.: C-515-17 Date: December 4, 2017 Superior Court of Justice - Ontario

Re: Bradley Ruttan, Plaintiff/Responding Party And: Douglas Gear, Bonnita Gear, Rob Thompson and Alan Steinberg, Defendants/Moving Parties

Before: The Honourable Justice G.E. Taylor

Counsel: Bradley Ruttan, In Person Robert K. Brown, Counsel for Douglas Gear and Bonnita Gear G. Edward Oldfield, Counsel for Rob Thompson and Alan Steinberg

Heard: October 16, 2017

Cost Endorsement

[1] The defendants were successful in having the Statement of Claim struck without leave to amend. The defendants Douglas Gear and Bonnita Gear were represented separately from the defendants Rob Thompson and Alan Steinberg. Separate costs orders are sought by the Gear defendants and the Thompson/Steinberg defendants. The Gear defendants seek partial indemnity costs totaling $23,809.78 made up of $19,965 for fees, $2,560.35 for HST and $1,554.43 for disbursements including HST. The Thompson/Steinberg defendants seek an award of substantial indemnity costs totaling $17,271 made up of $14,215 for fees, $1,847.95 for HST and $1,208.05 for disbursements.

[2] The issues raised by each pair of defendants were similar but not identical. The result of the motions is that this action did not proceed beyond the pleading stage. The defendants delivered Statements of Defence and prepared separate material for the motions. The plaintiff filed no responding material and did not deliver a Factum. No oral examinations took place with respect to the affidavits filed by the defendants on their respective motions.

[3] The amount claimed by the plaintiff was substantial. I accept that the issues were important to the defendants and accordingly had to be addressed with appropriate care and preparation. That said, in my view, an important factor when determining the issue of costs in the present case is the amount that the plaintiff could reasonably expect to pay upon having his Statement of Claim struck on a motion argued before any steps have been taken in the action other than completing the pleadings. I do not believe that the plaintiff could reasonably have anticipated being saddled with cost awards totaling in excess of $41,000 upon having his Statement of Claim struck at this stage of the action.

[4] I agree with the following statement in the Costs Submissions of the Thompson/Steinberg defendants: “The entire action is nothing more than a last gasp on the part of Mr. Ruttan to try to reverse the financial morass into which he is fallen through no fault of the Defendants…”. But in my view, that last gasp effort on the part of the plaintiff does not justify a crushing award of costs being made against him. Litigants have the right to bring unsuccessful actions. When they do they are required to pay a reasonable amount in costs to the successful party or parties.

[5] I do not find conduct on the part of the plaintiff which would justify an award of substantial indemnity costs. Each group of defendants is entitled to an award of partial indemnity costs.

[6] Although I am not assessing costs, it seems to me that the time spent by the solicitor for the Gear defendants is excessive. The time spent by counsel for the Thompson/Steinberg defendants is more reasonable.

[7] I do not propose to differentiate as between the pairings of defendants in fixing and awarding costs. Each group of defendants is entitled to $10,000 in costs inclusive of HST and disbursements payable by the plaintiff for a total of $20,000.

“G.E. Taylor”

G.E. Taylor, J.

Date: December 4, 2017