Court File and Parties

COURT FILE NO.: CV-15-00531407-0000 DATE: 20181024 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Turano’s Home Improvement, Plaintiff/Appellant AND: Zittell, Bari Stern, Defendant/Respondent

BEFORE: Mr. Justice A.J. O’Marra

COUNSEL: B. Romano, for the Plaintiff/Appellant N.C. Tibollo, for the Defendant/Respondent

HEARD: October 24, 2018

Costs Endorsement

[1] On September 10, 2018 I dismissed the Plaintiff/Appellant, Turano’s motion and confirmed in reasons set out in judgment 2018 ONSC 4428 the Master’s Report in favour of the Defendant/Respondent, Zittell in the Management and Determination of their respective damages in a home renovation project under the Construction Lien Act, RSO 1990 c. C. 30. On the review, I found that there were no overriding or palpable errors of fact or misapprehension of fact or law by the Master as claimed by the plaintiff/appellant that warranted appellate intervention.

[2] The parties have submitted their respective costs submissions. The successful party, defendant/respondent, Zittell, who was awarded $39,583.11 by the Master, claims costs on a partial indemnity basis in responding to the appeal, $24,130.61, inclusive of disbursements and HST. Counsel asserts the appeal was an attack essentially on the Master’s findings of fact and credibility, an attempt to re-litigate the issues, which had “no chance of success”.

[3] Counsel for the plaintiff/appellant, Turano submits that the costs sought by the defendant/respondent are excessive and well beyond what he would have expected for time spent to prepare for the matter and to attend the hearing. He submits that an appropriate amount for costs would be $15,000.00 inclusive of fees, disbursements and HST, given the issues in dispute, the work required to respond and argue the matter, and in proportion to the amounts claimed in the action.

[4] Pursuant to s. 131(1) of the Courts of Justice Act, costs of and incidental to a proceeding are at the discretion of the court. The court in exercising its discretion should consider the factors set out in Rule 57 of the Rules of Civil Procedure. I also bear in mind that I must adhere to the guiding principles as set out in Boucher v. Public Accountants Council for the Province of Ontario, [2004] OJ No. 2634 (CA) that the overall objective in fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances. Further, as noted by Lax J. in First Metro Consultants Limited v. 301094 Ontario Limited, [2003] OJ No. 2894 (SCJ) the amount at which costs are to be fixed is not simply an arithmetic calculation or approach. There should also be an attempt to establish some consistency so that litigants faced with a trial or motion, or as in this instance a review of a Master’s report, can fairly assess what they may be called on to pay should they be unsuccessful.

[5] In this instance, the appeal in many respects reiterated all of the issues raised in the hearing before the Master and argued at its conclusion. I agree with the plaintiff/appellant’s submission that the time spent and costs sought by the defendant/respondent appear excessive. The issues contested on the review although many were not complex and the amount recovered by the defendant/respondent in its cross claim was only $39,583.11.

[6] The amount which I consider to be fair and reasonable in the circumstances is as set out by the unsuccessful party, $15,000.00, plus $1,756.61 for disbursements and HST, as set out in the costs outline of Zittell, Bari Stern, payable within 30 days of this Order.

A.J. O’MARRA J. Date: October 24, 2018