CITATION: Ogbu & Blius Engineering Inc. v. Anyadiegwu, 2017 ONSC 7533

COURT FILE NO.: CV-07-01263-00

DATE: 2017 12 20

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

OGBU & BLIUS ENGINEERING INC., ANTHONY OKAFOR, JUNE CONVAY both personally and on behalf of THE ESTATE OF ALICE CONVAY and GRAND RIVER HOME IMPROVEMENTS, BUILDING PRODUCTS, SUPPLIES & SERVICES LTD.

Andrew Ostrom, for the Plaintiffs/Appellants

Plaintiffs/Appellants

• and -

OKAY ANYADIEGWU, also known as HYACINTH, and PATIENCE WHYTE

Kalman Magyar, for the Defendant/Respondent Patience Whyte

Defendants/Respondents

HEARD: August 30, 2017, with submissions for re-assessment in writing

ASSESSMENT OF COSTS

EMERY J.

[1] This is an assessment of costs that arises from a progression of the following events:

(a) On October 3, 2013, Justice Price dismissed the plaintiffs’ action, with prejudice and with costs. The defendant, Okay Anyadiegwu, also known as Hyacinth had already been let out of the action. The dismissal order therefore awarded costs of the action to the defendant, Patience Whyte.

(b) In a costs endorsement released on September 3, 2014, Justice Price ordered that those costs be assessed on a partial indemnity basis by an assessment officer, and on the hourly rates set out in Ms. Whyte’s Costs Outline, which he found not only reasonable, but conservative. Neither party referred me to any Costs Outline. I do not know if Justice Price was instead referring to the same bill of costs contained in the materials filed for this assessment, but that bill of costs appears to use the same hourly rates.

(c) Assessment Officer Horrocks heard the submissions of counsel for the defendant Whyte on March 3, 2016 in the absence of any plaintiff, despite a previous order made by him in the presence of the plaintiffs Anthony Okafor and June Convay, also known as June Okafor that the assessment would be heard on March 2 and 3, 2016, peremptory on them. After hearing submissions of counsel for the defendant Whyte, Assessment Officer Horrocks issued a certificate of assessment on March 3, 2016 fixing the costs of the action payable by the plaintiffs to the defendant Whyte in the amount of $30,802.44. This did not include the costs of the motion to dismiss the action for delay awarded by Justice Price on October 3, 2013.

(d) The plaintiffs Anthony Okafor and June Convay appealed the certificate of assessment issued on March 3, 2016 to this court. At the hearing of the appeal on August 30, 2017, all parties agreed to resolve the appeal by consenting to an Order to set aside the certificate of assessment, and to vary the order made by Justice Price on September 3, 2014 to have me assess the costs of the action awarded to the defendant Whyte.

The Assessment Order

[2] Counsel for the parties to the appeal filed a Consent Order containing the terms for the process to assess the costs of the action the plaintiffs are to pay (the “Assessment Order”). That Order, dated August 30, 2017, provides that these costs be assessed by the court on the basis of written submissions. These provisions were suggested by me at the hearing of the appeal as an efficient, effective and expedient manner of providing the parties with an assessment of costs with the submissions of both sides heard and considered. Counsel agreed to the dates that form part of the Assessment Order by which they were to file evidence and submissions for this purpose.

[3] It seemed to me a cumbersome process to decide the appeal, and if the appeal was allowed and the certificate set aside, to then require the parties to return to an assessment officer all over again. I would be in just as good, if not a better position to assess those costs once and for all because I had already heard argument on the appeal, and I have now reviewed all of the materials filed for each assessment.

[4] I have now received the following materials for the assessment from the defendant Whyte:

(1) Letter from Mr. Magyar dated September 13, 2017.

(2) Appeal Record of the Respondent Patience Whyte containing various orders and endorsements of Justice Price as to costs.

(3) Supplementary Appeal Record containing the productions on the costs assessment before Assessment Officer Horrocks.

(4) A brief, containing the statement of defence, copies of accounts and a copy of the decision of Justice R.D. Reilly in R. v. June Okafor, 2004 CarswellOnt 9940.

(5) Transcript of submissions made by William S. O’Hara, counsel for the defendant Whyte, at the assessment hearing on March 2, 2016.

[5] I have also received a book titled the Cost Submissions of the Appellants/plaintiffs dated November 13, 2017. This book contains the costs submissions of the plaintiffs, as well as:

(A) The Costs Endorsement of Justice Price dated September 3, 2014.

(B) The Amended Statement of Claim.

(C) Reasons for Decision of the Law Society Hearing Panel in the matter of Okay Hyacinth Anyadiegwu.

(D) Affidavit of Attempted Service of Jeff Connor.

(E) Affidavit of Attempted Service