Court File and Parties

COURT FILE NO.: CV-17-00586591 DATE: 20180622 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LINETT FAMILY TRUST (1984), 606314 ONTARIO LTD. and MARC LINETT, Clients/Applicants AND: AIRD & BERLIS LLP, Solicitors/Respondent

BEFORE: P. J. Monahan J.

COUNSEL: Tanya A. Pagliaroli, for the Client/Applicants Pamela Miehls and Danielle Muise, for the Solicitors/Respondent

HEARD: March 1, 2018

Costs Endorsement

[1] On, April 3, 2018, I refused to grant a motion by Aird & Berlis LLP (“A&B”) seeking the dismissal of an application brought by the Linett Family Trust (1984), 606314 Ontario Ltd. and Marc Linett (collectively, the “Clients”) for an assessment of A&B’s accounts. I found that there had been inordinate delay in conducting the assessment in this case and that it is entirely possible that the delay may cause prejudice to A&B. Nevertheless, I found that the delay that had occurred was primarily attributable to actions taken (or not taken) by the assessment office rather than by the parties themselves. I concluded that it would not be fair or appropriate to have this institutional delay result in the Clients being precluded from having their accounts assessed.

[2] In my April 3, 2018 Endorsement I indicated that the Clients were entitled to their costs of the motion, and invited the parties to attempt to settle the quantum of costs payable. Having been unable to resolve that issue, the parties have provided me with written cost submissions.

[3] The Clients note that they were successful in resisting A&B’s motion to dismiss the assessment for delay, and argue that there are no circumstances in this case which would justify departure from the default rule that the winner gets its costs. They acknowledge that the Court found that there is a substantial risk of prejudice to the solicitors occasioned by the delay, but point out that the vast majority of the delay was found to be institutional in nature. Having been put to the significant expense of responding to A&B’s motion, the Clients argue that it would be unfair to deprive them of their costs of doing so successfully. They seek partial indemnity costs in respect of the motion in the amount of $7835.08, along with an additional $2500 in partial indemnity costs in respect of an application they brought to set aside a dismissal order that had previously been erroneously entered by an assessment officer.

[4] In response, A&B suggests that there are a number of circumstances here which would justify departure from the default rule that the winner gets its costs. These include the fact that the Court found that there was unacceptable and inordinate delay in the proceeding, and that this delay created a substantial risk of prejudice to A&B. They argue that it was reasonable in the circumstances for A&B to attempt to protect their interests by bringing the dismissal motion. They further argue that the costs sought by the Clients in respect of the dismissal motion are excessive, given that the material that had been prepared in the prior application to set aside the dismissal of the assessment was used by the Clients on the dismissal motion.

[5] Having considered these submissions, I remain of the view that the Clients are presumptively entitled to their costs. The inordinate delays in this matter were primarily attributable to actions taken (or not taken) by the assessment office rather than by the parties themselves. The Clients were forced to respond to the motion initiated by A&B in order to pursue their right to assessment. It is appropriate that they be awarded their costs for successfully doing so.

[6] That said, as noted in my earlier Endorsement, I have concerns regarding the fact there was a 22 month period between October 2013 and July 2015 in which the Clients failed to move the assessment process forward. I ultimately accepted the explanation offered by the Clients for this delay, but remain concerned by it. While I was not prepared to dismiss the Clients’ application for an assessment on the basis of this delay, in my view this is a factor appropriately taken into account in the assessment of costs. Moreover, the Clients would have been required in any event to file materials to set aside the earlier dismissal of their assessment application that had erroneously been entered by the assessment office. The Clients acknowledge that these materials were utilized in the context of A&B’s motion to dismiss, resulting in some duplication of effort.

[7] Taking these various considerations into account, in my view a costs order in the amount of $6500, inclusive of HST and disbursements, is appropriate in the circumstances and I so order.

P.J. Monahan J. Date: June 22, 2018