Court File and Parties

Court File No.: 5853/12 Date: 2018/06/25

Ontario Superior Court of Justice

Between:

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

The Honourable Justice D. L. Edwards

Costs Endorsement – Re: Jones

[1] On May 15, 2018 I heard a summary judgment motion brought by the defendant Gerlandina Jones by her litigation guardian, Paul Jones. I granted the motion and dismissed the plaintiff’s claim against Ms. Jones because I determined that it was statute barred.

[2] I requested costs submissions, which I have now received and reviewed. This is my cost endorsement.

[3] This defendant seeks costs on a partial indemnity basis up to July 25, 2017 and costs on a substantial indemnity basis from that date in accordance with Rule 49.10.

[4] Ms. Jones made a Rule 49 offer which was served on the plaintiff on July 25, 2017 and a further offer served on the plaintiff on December 1, 2017.

[5] With respect to the action excluding the summary judgment motion, Ms. Jones’ counsel seeks $5,160 on a partial indemnity basis or $7,095 on a substantial indemnity basis. For preparation for the summary judgment motion he seeks $13,120 on a partial indemnity basis or $18,040 on a substantial indemnity basis. Finally with respect to the attendance on the motion, he seeks $1,800 and $2,475 on partial and substantial indemnity bases respectively. His disbursements total $6,376.22.

[6] The plaintiff’s counsel submits that there was no case law provided to support the position that where the defendant is the moving party, he/she should be treated as a plaintiff for the purposes of Rule 49 offers. Generally, he urges me to exercise my discretion and not award any costs.

[7] 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 and hour charged, and Rule 49 offers.

Analysis

[8] Ms. Jones by her Litigation Guardian, Paul Jones, was completely successful and is entitled to her costs.

[9] The time docketed by her counsel appears to be reasonable. I do not have a Bill of Costs from the plaintiff, and therefore I am unable to use that to compare to what the losing party could reasonably expect to pay.

[10] The hourly rate is appropriate.

[11] I find that a defendant who is a moving party should be treated as a plaintiff for the purpose of Rule 49 Offers. The policy behind that Rule is equally applicable to whichever party who commences the motion.

[12] I also find that Ms. Jones obtained a better result than was contained in her Rule 49 Offer.

[13] I therefore find that Ms. Jones is entitled to costs on a partial indemnity up to July 25, 2017, being the date of the Rule 49 Offer, and on a substantial indemnity basis thereafter.

[14] The disbursements claimed are appropriate and I award the sum of $6,376.22 for those disbursements.

[15] After considering all of the relevant factors, I award Ms. Jones costs in the total amount of $25,000 plus HST together with disbursements in the total amount of $6,376.22 and order the plaintiff to pay the same.

D. L. Edwards J. Released: June 25, 2018