Court File and Parties

COURT FILE NO.: 5853/12 DATE: 2018/06/25

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Maria Marino, Plaintiff

• Anthony Wellenreiter, for the Plaintiff

- and -

Charlotte Marino and Gerlandina Jones by her Litigation Guardian, Paul Jones, Defendants

• Andrew D. Ruzza and Daniel Yudashkin, for the Defendant Charlotte Marino
• Ari A. Lokshin, for the Litigation Guardian of Gerlandina Jones

COSTS ENDORSEMENT – Re: Charlotte Marino

[1] On May 15 and 16, 2018 I heard a summary judgment motion brought by the defendant, Charlotte Marino. I granted the motion and dismissed the plaintiff’s claim and released my reasons on May 18, 2018.

[2] I requested costs submissions, which I have now received and reviewed.

[3] The defendant seeks costs on a substantial indemnity basis in the total amount of fees and disbursements of $131,614.70, or in the alternative on a partial indemnity basis in the total amount of $92,878.80.

[4] The plaintiff’s counsel submits that there were reasons that the matter needed to proceed to court. He urges me to exercise my discretion and not award any costs.

[5] Rule 57.01 describes the factors that I should consider in exercising my discretion with respect to cost awards. They include the result, the conduct of the parties in shortening or lengthening the proceeding, the complexity of the issues, what is at stake, the hourly rate(s) and hour charged, and any Rule 49 offers.

Analysis

[6] Charlotte Marino was completely successful and is entitled to her costs.

[7] There were two counsel involved on her behalf. As well, they both appeared for the hearing of the motion and at times attempted to both participate during argument. Together they have docketed almost 600 hours for this matter.

[8] I do not have a Bill of Costs from the plaintiff and therefore I am unable to compare that to assist me in determining what the losing party could reasonably expect to pay. However, I do note that counsel for the other successful defendant, in this matter, being Ms. Jones, docketed slightly less than 100 hours for his involvement in this file.

[9] I do acknowledge that the Charlotte Marino’s counsel were required to deal with a motion regarding a certificate of pending litigation for the defendant’s property, whereas the counsel for Ms. Jones did not have to deal with that motion, but had a motion to appoint a litigation guardian. I acknowledge that the motion for a certificate of pending litigation did involve more legal work than the motion to appoint a litigation guardian. As well, it was necessary for Charlotte Marino’s counsel to argue substantive issues beyond a limitation period defence.

[10] However, I find that the time docketed on this file by Charlotte Marino’s counsel is excessive and results in a claim for costs that is significantly beyond what a losing party could reasonably expect to pay.

[11] I find that the hourly rates of both of Charlotte Marino’s counsel are appropriate.

[12] There were no Rule 49 offers.

[13] I find that there was no conduct of the plaintiff that would entitle costs awarded on a substantial indemnity basis.

[14] When I consider the extra legal work involved on behalf of Charlotte Marino to the efforts of the Ms. Jones’ counsel and the fact the Ms. Jones was awarded costs partly on a partial indemnity basis and partially on a substantial indemnity basis, I am of the view that the total cost award to each defendant for fees should be somewhat similar.

[15] I therefore find that the Charlotte Marino is entitled to costs in the amount of $30,000 plus HST.

[16] I have reviewed the disbursements claimed and find them to be reasonable. I therefore award the amount of $13,531.78 for disbursements.

[17] Ms. Marino’s counsel had urged me to award costs against Joseph Marino who is the son of the plaintiff and a non-party. I am satisfied that the plaintiff was not a “person of straw”. Although her participation in the litigation was minimal, she is elderly and does not speak English well. It was understandable that her son would assist her.

[18] In summary, I award costs to the defendant, Charlotte Marino in the amount of $30,000 plus HST for fees and $13,531.78 for disbursements and order the plaintiff to pay the same.

D. L. Edwards J.

Released: June 25, 2018