Court File and Parties
COURT FILE NO.: CV-09-1026-00 03-BN-8145 CV-13-1173-00 CV-13-5319-ES CV-13-5389-00 CV-15-4565-00 CV-16-5670-00
DATE: 20180827
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: SAM COSENTINO on his own behalf and on behalf of all creditors of DOMINACO DEVELOPMENTS INC. Anna Cosentino, Caesar Cosentino and Mary Alilovic, the Estate Trustees of the ESTATE OF DOMENIC COSENTINO, Deceased, CAESAR COSENTINO, ANTHONY COSENTINO, MARIA COSENTINO, 1183082 ONTARIO INC., 1331722 ONTARIO INC., 1347482 ONTARIO INC. and PIT-ON CONSTRUCTION CO. LIMITED
Plaintiffs
v.
DOMINACO DEVELOPMENTS INC., Caesar Cosentino and Mary Alilovic, the Estate Trustees of the ESTATE OF DOMENIC COSENTINTO, Deceased, ANNA COSENTINO, CAESAR COSENTINO, MARY ALILOVIC, ANTHONY COSENTINO, MARIA COSENTINO, 1183082 ONTARIO INC., 1331722 ONTARIO INC., 1347482 ONTARIO INC., PIT-ON CONSTRUCTION CO. LIMITED and JAMES ARTHUR MACCOLL
Defendants
BEFORE: Daley, RSJ.
COUNSEL: Antoniou, A., Counsel for Arthur MacColl Handler, M. and Evangelista, E., Counsel for Anthony Cosentino; Mary Alilovic; Maria Cosentino; Stefanie-Anne Cosentino; Anna Cosentino; Mary Alilovic in her capacity as Estate Trustee; 1183 Ontario Inc.; 1331 Ontario Inc.; Pit-On Constructions Co.; Dominaco Developments Inc. Singer, E., Counsel for Defendant Scolieri Turk, S., Counsel for May Alilovic and Domenic Cosentino and Co. Sam Cosentino, in person Concetta Cosentino and Cesare Cosentino, in person
COSTS RULING ON RECUSAL MOTION
INTRODUCTION
[1] The Moving Parties brought motions that I recuse myself as the case management judge in several actions, as referenced above. For the reasons released on June 28, 2018, the motions were dismissed (Cosentino v. Dominaco Developments Inc., 2018 ONSC 4092).
[2] Three sets of defendants, who were respondents on the recusal motions, who filed material and attended at the hearing of the motions seek costs from the Moving Parties. These defendants have filed submissions and Costs Outlines.
[3] The moving party Sam Cosentino (“Sam)” has filed submissions in reply, opposing the defendants’ request for costs. The moving parties Concetta Cosentino and Cesare Cosentino have not filed submissions, but as they did with the recusal motion filed by Sam, they have stated by emails sent by them that they rely upon Sam’s submissions as to costs.
[4] Notably, no Costs Outlines were submitted by any of the Moving Parties setting out the time spent and the disbursements incurred in the bringing of the recusal motions. Such Costs Outlines would demonstrate the time and money spent by the Moving Parties and would be indicative as to what they reasonably could have expected to pay to the responding parties on the motions, in the event their motions were unsuccessful.
Application of General Principles Relating to the Award of Costs on Recusal Motions
[5] It is submitted on behalf of the Moving Parties that rather than having costs fixed by this court, in the event an award of costs were to be made, the determination of those costs should be made following an assessment by an assessment officer.
[6] I reject that submission.
[7] The days of referring the quantum of costs to an assessment officer or what was previously known as a taxing officer, have long passed. The delay associated with that process is unacceptable and as such the fixing of costs by judges of this court is now the normal rule and practice.
[8] Only where it is demonstrated that the case is an exceptional one may a court refer costs for assessment and give directions to the assessment officer. There must be some unusual feature that requires the assessment of the costs and would justify deviating from the presumption that costs will be fixed.
[9] No evidence whatsoever has been adduced that would demonstrate that this is one of those exceptional cases where the determination of the quantum of costs should be referred to an assessment officer. Procedural and substantive justice would not be achieved by referral of the costs to an assessment officer.
[10] Viet J. of the Alberta Court of Queen’s Bench in the decision in Edmonton Flying Club v. Edmonton Regional Airports Authority 2013 ABQB 108 provided helpful and instructive comments with respect to the entitlement to costs on an unsuccessful recusal motion. I agree with and adopt the legal framework and analysis applied by Viet J. to this case.
[11] The general maxim that costs usually follow the event has equal application to motions for recusal: Schreiber v. Mulroney, [2007] O.J. No. 3191; leave to appeal denied Schreiber v. Mulroney 2007 CarswellOnt 7184.
[12] As to who may have standing or eligibility to seek costs as a respondent on a recusal motion, if a party bringing a recusal motion should reasonably have expected other parties to appear on the motion, then the party bringing the recusal motion should expect to pay those other parties’ costs if the recusal motion fails. The expectation of cost jeopardy is a natural outcome of realizing that it will cost money for other parties to prepare and present useful submissions: see Edmonton Flying Club at para. 22.
[13] As motions for recusal should not be brought lightly, cost consequences must reasonably follow the outcome of such a motion and were it otherwise parties might be encouraged to bring such motions without proper cause.
[14] With respect to the present case, clearly the Moving Parties would have reasonably foreseen that the defendants, now seeking costs on the dismissed recusal motion, would have participated in the motion by filing materials in response and attending on the return date of the motion to make submissions.
[15] While the Moving Parties submit that none of the other parties had an interest in the outcome of the motion which would warrant their active participation in responding to it, that clearly was not the case.
[16] The Moving Parties filed a massive 7 volume motion record made up of more than 1000 pages of material, including more than 100 exhibits. One of the actions under case management has been outstanding for approximately 15 years and as such delay was clearly a concern for the parties in that action.
[17] Furthermore, not only were the Moving Parties seeking my recusal as the case management judge, they were also seeking an order to have all of the actions under case management transferred from Brampton to Toronto. The defendants who participated in the recusal motion had a significant interest at stake and thus they acted reasonably in participating in the motion and the Moving Parties knew or ought to have known that they would do so and that they would be thereby incurring legal costs.
Analysis:
[18] Having concluded that the defendants acted reasonably in responding to the recusal motion and that the Moving Parties should have expected they would, I have also concluded that costs of the motion should follow and be payable by the Moving Parties to those defendants seeking costs.
[19] The defendants seek costs on a substantial indemnity basis from the Moving Parties.
[20] While the recusal motion may have been ill-conceived from the outset and involved a very substantial motion record, I have concluded that costs on a substantial indemnity basis would not be appropriate in this case, as the moving parties’ conduct was not so egregious or reprehensible as to warrant an elevated level of costs: Davies v. Clarington, 2009 ONCA 722 at paras. 37-40.
[21] As to the position of the Moving Parties that the defendants claims for costs are excessive, as already noted, the Moving Parties did not file Costs Outlines and as noted by Winkler J. (as he then was) in Risorto v. State Farm Mutual Automobile Insurance Co., [2003] O.J. No. 990 at para. 10, where a party opposing an award of costs asserts that the time spent by opposing counsel was excessive, where counsel fails to put before the court details as to his own time spent, the submission is “no more than an attack in the air.”
[22] Thus, while considering the fair and reasonable costs to be awarded to the defendants time spent by their counsel and possible duplication of time devoted to the matter are factors to be considered, as there is no evidence as to the time devoted to this matter by the Moving Parties or counsel, there is no evidence as to their reasonable expectations of the cost exposure they anticipated facing, if unsuccessful.
Costs Claimed by the Cosentino Defendants:
[23] These defendants seek substantial indemnity costs in the all-inclusive sum of $16,776.56 or alternately partial indemnity costs in the all-inclusive sum of $14,643.68.
[24] These costs related to the appearances before the court on March 28 and May 23, 2018 which are connected with the Moving Parties’ recusal motion. Two counsel on behalf of these defendants appeared in court on these dates, namely Mr. Handler and Ms. Evangelista, who were called to the bar in 1975 and 2016 respectively.
[25] Having considered the submissions of counsel on behalf of these defendants as well as the submissions of the Moving Parties, I have concluded that there is some overlap and duplication in the time devoted by counsel for these defendants to the motion and its preparation. While it was clearly reasonable for Mr. Handler to have Ms. Evangelista, as junior counsel, assist him in considering the pending motion and the drafting of a factum, her attendance on the dates of March 28 and May 23 was not reasonably necessary.
[26] Oftentimes there are many professional and strategic benefits to having more than one lawyer managing litigation like this, however, it is an approach which may drive legal fees higher. This approach may be beneficial and appropriate as between a law firm and its client, the party who adopts this approach may not reasonably expect that the greater costs arising from this approach will be borne by the unsuccessful parties: Real Group v. Core Precision, [2011] O.J. No. 4454.
[27] As to the factors identified in Rule 57.01 as to the fixing of costs, given that this was a recusal motion, several of the factors under that rule do not have direct application, however all factors were considered.
[28] Each action contains a variety of claims for relief, although no money judgment would follow the outcome of this motion.
[29] The motion was complex largely as a result of the conduct of the Moving Parties both in terms of the submissions made and the volume of the motion materials filed. As already noted, the motion materials were very substantial and would have taken a very significant time by counsel to properly consider.
[30] The conduct of the Moving Party, Sam Cosentino, tended to unnecessarily lengthen the duration of the time involved, particularly given that he made an oral motion for recusal, which was then followed by a notice of motion and supporting motion record.
[31] As to the importance of the recusal motion, the actions involved are all under case management in Brampton and the history of the actions is one where counsel and the parties have been unable to work collaboratively or cooperatively in terms of establishing reasonable timetables for the conduct of productions, discoveries and motions. I concluded that these actions needed case management in order to ensure that they proceeded in the most economical and time efficient manner. Also, as the Moving Parties sought to have these actions transferred from Brampton to Toronto, the outcome of the motion was of importance to all parties involved.
[32] I have concluded that the Cosentino Defendants should be paid reasonable partial indemnity costs in the sum of $11,300 inclusive of HST along with assessable disbursements of $546.51. The reduction in the fee component is as a result of a reduction in the time spent on this matter by Ms. Evangelista, including a deduction for time related to her attendance in court on March 28 and May 23rd, 2015.
Costs Claimed by the Defendant MacColl:
[33] This defendant seeks costs on a full indemnity basis in the sum $16,148.77 or alternately substantial indemnity costs of $14,568.86 or partial indemnity costs of $10,777.08.
[34] For the reasons already expressed, I have concluded that the appropriate level of costs is one of partial indemnity.
[35] The factors considered under Rule 57.01 as discussed above apply as well to the claim for costs by this defendant.
[36] Counsel for the defendant MacColl provided detailed submissions with respect to costs, including a Cost Outline and it is apparent from that material that reasonable steps were taken by the principal lawyer involved to delegate to a more junior lawyer, where appropriate, certain aspects of the time required to respond to the recusal motion. As such, I have concluded that the time spent was reasonable and that the Moving Parties should have reasonably expected to pay costs on a partial indemnity basis in the amount claimed.
[37] As a result, the Moving Parties shall pay partial indemnity costs to the defendant MacColl in the all-inclusive sum of $10,777.08.
Costs Claimed on Behalf of Defendant’s Anthony Cosentino and Mary Alilovic:
[38] Two Costs Outlines were submitted on behalf of these defendants, however for the purpose of determining their cost entitlement, I have considered the latest costs submission, which is dated July 13, 2018.
[39] The considerations of the factors under Rule 57.01, as discussed above, also apply to the determination of the cost entitlement of these defendants.
[40] Counsel Mr. Turk, who appeared on behalf of these defendants on the recusal motion, includes in his Costs Outline details as to services provided by him to Mr. Larry Levine QC and Ms. Linda Shub, who were witnesses summoned for out-of-court examination by the Moving Parties with respect to the pending recusal motion. These witnesses are not parties to the proceedings under case management.
[41] It is asserted by counsel on behalf of these witnesses that the Moving Parties wrongly impugned the character and reputation of these witnesses as a result of unfounded allegations of misconduct and as such the Moving Parties should be sanctioned by a punitive costs award.
[42] While the allegations made by the Moving Parties, and in particular by Sam Cosentino, against these witnesses were entirely unsupported by any evidence, and may have been reckless, I have concluded that I have no jurisdiction to consider such conduct as a factor in fixing fair and reasonable costs in all of the circumstances.
[43] Further, time devoted to the preparation for and attendance on cross examinations of these non-party witnesses by counsel is not time properly included in the determination of the defendants’ cost entitlement.
[44] Counsel sought costs on a full indemnity basis in the all-inclusive sum of $8249 or alternatively on a substantial indemnity basis in the all-inclusive sum of $7435.40.
[45] Considering the factors discussed above under Rule 57.01, and having regard to the submissions on behalf of counsel and by the Moving Parties I have concluded that costs in the all-inclusive sum of $2500 is fair, reasonable and proportionate to the involvement of these defendants in the recusal motion. This sum reflects a reduction with respect to time spent by counsel dealing with matters solely connected to the third party witnesses.
Conclusion:
[46] In summary, the Moving Parties shall pay forthwith costs of the dismissed recusal motions as follows:
(I) to the Cosentino Defendants the sum of $11,300 inclusive of HST plus disbursements of $546.51;
(II) to the defendant MacColl the all-inclusive sum of $10,777.08; and
(III) to the defendant’s Anthony Cosentino, and Mary Alilovic the all-inclusive sum of $2500.
[47] An order shall issue in these terms. Approval as to form and content of a draft order is dispensed with.
Daley, RSJ.