Court File and Parties

COURT FILE NO.: FS-13-390699 DATE: 20180827 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Vivian Reiss, Applicant AND: Irving Garten, Respondent

BEFORE: Kiteley J.

COUNSEL: Avra Rosen, for the Applicant David Milosevic, for the Respondent

HEARD: in writing

Endorsement as to Costs

Background

[1] In an endorsement dated February 7, 2018, I vacated the February 26, 2018 trial date for the “DadCo” issue and I set a new date for trial for 7 days, commencing on September 12, 2018. The adjournment of the trial was requested by Ms. Reiss and Mr. Garten asked for costs. In that endorsement, I indicated that if counsel were unable to agree by May 15, 2018 as to the costs of the delay in the trial of the DadCo issues, they were required to send written submissions to my attention by no later than May 31, 2018.

[2] On about May 30, I received Mr. Milosevic’s written submissions. Two months after the deadline, Ms. Rosen filed her written submissions on July 31, 2018. Through no fault of Ms. Rosen, they did not come to my attention until a few days ago after I read Mr. Milosevic’s reply submissions dated August 2 in which he referred to Ms. Rosen’s submissions and I made inquiries as to their whereabouts.

[3] Mr. Garten asks for full recovery of costs “thrown away” in the amount of $30,890.81 inclusive of HST. He asserts that the adjournment was caused because the Applicant failed to comply with the timetable for the exchange of amended pleadings and supporting documents, as well as conducting questioning of the parties, and that the Applicant has persistently delayed as demonstrated by the delay of 2 months in filing costs submissions. In addition, he asserts that the Applicant was unwilling to proceed on the February 26 trial date. Counsel provided a costs outline that listed costs on full recovery, substantial indemnity and partial indemnity bases.

[4] Ms. Reiss takes the position that no costs should be awarded because neither party was ready for trial scheduled for February 26 and because the parties had agreed to attend mediation. Furthermore, Ms. Reiss took the position that counsel for Mr. Garten had failed to properly identify the costs he was seeking, had provided a description of the fees that was “overly vague”, had not provided dockets or any details and was claiming costs not properly classified as costs “thrown away”.

[5] In reply submissions, counsel for Mr. Garten took the position that it was not a requirement that dockets be provided but he nonetheless provided what is described as an excerpt of counsel’s dockets for the period August 2017 to January 2018.

Is the Respondent Entitled to Costs?

[6] The Applicant started these proceedings in 2013 and since then many steps have been taken including the parties entering into Minutes of Settlement dated October 31, 2015 that provided for arbitration of a specific issue and deferral of the trial of the DadCo issues.

[7] In an endorsement dated August 23, 2017, I set the DadCo trial for the week commencing January 15, 2018.

[8] My endorsement dated October 16, 2017 indicates that the trial date of January 15, 2018 for the DadCo issues was vacated. Counsel agreed on October 16 that they could not be ready for January 15, 2018 because pleadings amendments, document exchange and questioning had to be conducted. On consent I set a schedule that required pleadings amendments by November 17, document exchange by December 8 and questioning by January 15. I set a new trial date of February 26. I indicated that the duration and date of trial would be confirmed at the TMC on January 29, 2018. Neither party sought costs of that adjournment.

[9] In order to complete the pleadings amendments by November 17, counsel for the Applicant had to serve and file the amended Application promptly. Ms. Rosen served her amended Application on or about November 24, 2017, exceeding the time for the Respondent’s amended Answer and jeopardizing the ensuing schedule. It took until mid-January to complete the pleadings. On January 29, 2018 counsel for the Respondent confirmed that his client was ready and prepared to proceed to trial, subject to conducting questioning and answers to undertakings. He advised that his client was “adamant” that the trial proceed on February 26.

[10] At the final trial management conference on February 7, 2018, it was apparent that the trial could not proceed on February 26, 2018. Ms. Rosen asked for an adjournment to the end of March or early April. However, Mr. Milosevic had advised months earlier that his schedule was such that if it did not proceed as planned, he would not be available until June. Mr. Milosevic objected to the adjournment and took the position that if it was adjourned, his client was entitled to costs thrown away which he estimated at $10,000. In the end, I adjourned the trial to September with counsel to provide written submissions by no later than May 31, 2018 if they were unable to agree on costs.

[11] In submissions on behalf of the Applicant, counsel takes the position that the Respondent was not ready for the February 26 trial date. I am satisfied that if the trial date had not been vacated, Mr. Garten, Respondent in the DadCo trial would have been prepared. I am satisfied that the delay in meeting the February 26 trial date was precipitated by the Applicant failing to adhere to the consent timetable for pleadings. I am satisfied that Mr. Garten is entitled to costs thrown away.

[12] That is not to say that the delay was wilful. There was a lot going on in this case and the related “Costs of Disposition” trial planning. The emails between counsel demonstrate genuine efforts to co-operate, but once the pleadings amendment stage fell off the rails by two months, it was not possible to pick up the remaining steps in time for the February 26, 2018 trial date.

Amount of Costs Thrown Away

[13] In his initial submissions, Mr. Milosevic provided a costs outline indicating that he had been engaged 52.6 hours and David Cassin 5.2 hours. Mr. Milosevic was called in 2005 and used an hourly rate of $495 per hour. Mr. Cassin was called in 2016 and used an hourly rate of $250.00. In the costs outline, services were allocated in these categories: preparation of trial management conference materials (6.2 hours), review of caselaw, authorities, and legal principles (9.9 hours), preparation of witness statements and questions for various witnesses (13.2 hours), preparation of cross-examination of witnesses (8.7 hours), meeting with client regarding trial preparation, preparation of client for witness stand, compiling relevant documents (7.1 hours) and general trial preparation (7.5 hours for Mr. Milosevic and 5.2 hours for Mr. Cassin).

[14] In his reply submissions, he provided excerpts of his dockets starting August 15, 2017 and ending January 1, 2018.

[15] I agree with Mr. Milosevic that it is not a requirement that dockets be provided. They are, however, useful, particularly where the costs claimed are “thrown away”.

[16] I start with what is not in the category of “thrown away” in this instance. All of the services rendered between August 15, 2017 and October 15, 2017 are not relevant. In that interval, counsel and the parties were preparing for a trial to start January 15. It was only on October 16 that the trial date was vacated and replaced by February 26. No costs were ordered as a result of the postponement from January 15 to February 26.

[17] Between October 16, 2017 and January 2, 2018, the dockets for Mr. Milosevic indicate as follows: October 19 .20 November 27 .90 December 14 .50 and for Mr. Cassin: November 27 4.5 hours January 2 .70 hours.

[18] In other words, about 50 hours of Mr. Milosevic’s 52 hours were spent prior to the October 16 case conference when the trial was adjourned on consent from January 15 to February 26. Those are not costs “thrown away” as a result of the order dated February 7 to adjourn the trial from February 26 to September 12.

[19] It follows that the costs “thrown away” are, in this case, modest. Since I have found above that the delay was not wilful and that counsel were attempting to resolve their procedural challenges, the Applicant ought not to be required to pay costs on a full indemnity or substantial indemnity basis.

[20] I leave to another day whether those services rendered in preparation for the trial that do not fall into the period between October 16 and January 2 may be the subject of a claim for costs if the Respondent is successful at trial.

Order to Go as Follows:

[21] The Applicant shall pay costs thrown away as a result of the order made on February 7, 2018 adjourning the trial from February 26, 2018 to September 12, 2018 fixed in the amount of $1000.00 payable by September 18, 2018.

Kiteley J. Date: August 27, 2018