Court File and Parties

COURT FILE NO.: CV-13-1882-00 DATE: 2018 12 03 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Noel Hall and Winston G. Mattis, Applicants and: Donnette Buckley, Respondent

BEFORE: Justice G.D. Lemon

COUNSEL: Winston G. Mattis, In Person Noel Hall, Not Appearing S. Caswell, Counsel for the Respondent

HEARD: In Writing

Costs Endorsement

The Issue

[1] On August 24, 2018, I dismissed this application for failure of the applicants to move the matter forward. Although Ms. Buckley sought costs, I had no information upon which to assess them. I have now received submissions from Ms. Buckley and Mr. Mattis.

[2] Ms. Buckley seeks costs fixed in the amount of $86,234.42 with respect to the application and $31,160.42 with respect to the motion to dismiss.

[3] This decision has been delayed since I was required to obtain the file from long term storage to consider those requests.

Authorities

[4] Rule 57.01 of our Rules of Civil Procedure sets out the factors that the court may consider when determining costs. The relevant factors that I should consider here are:

(a) the result in the proceeding, (b) the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer; (c) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed; (d) the amount claimed and the amount recovered in the proceeding; (e) the complexity of the proceeding; (f) the importance of the issues; (g) the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding.

[5] Modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants: Fong v. Chan, (1999), 46 O.R. (3d) 330, at para. 22.

[6] Costs awards, at the end of the day, should reflect “what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties”: see Boucher v. Public Accountants Council for the Province of Ontario, (2004), 71 O.R. (3d) 291, at para. 24.

Analysis

[7] The motion to dismiss was based on the applicants’ failure to move the matter along. This was a rather straightforward motion that did not require two lawyers and a law clerk. There was a lengthy history to summarize but preparation should not have taken a total of 67 hours of lawyer time. The motion eventually went on consent. The costs for the motion can be easily dealt with in the amount of $7,500.00.

[8] Ms. Buckley submits that this was a complex application seeking extensive relief against her. She submits that she was a vulnerable person of limited means and that the applicants made serious unproven allegations of impropriety and illegal conduct on the part of her and her counsel. Those allegations required comprehensive responses. When those responses were made, the applicants did not proceed and that left Ms. Buckley with significant legal costs.

[9] Mr. Mattis submits that after the application was commenced, his life has been consumed with providing care for close family members including taking them to doctors and specialists appointments as well as attending various hospitals. As a result, he was unable to proceed with the application. He therefore submits that the issues have not been adjudicated although he consented to the dismissal of the application.

[10] Ms. Buckley has filed her solicitor client assessment for the fees of the application. It shows that the accounts were assessed at $84,246.74 plus costs of $1000.00. While interest was also payable, that is an issue between Ms. Buckley and her counsel; it is not a matter for the applicants.

[11] Given the inflated costs request with respect to the motion, I would have real doubts about the application costs. The material filed on the application was long and detailed but one would not expect that account to follow. However, that account has been assessed and I am prepared to accept that.

[12] The litigation was important to the parties. Ms. Buckley has been successful in having the application dismissed.

[13] Serious allegations were made against Ms. Buckley. They were not followed up. Ms. Buckley was required to defend herself. This is a circumstance that would allow for full indemnity costs.

[14] With respect to the application itself, Mr. Mattis submits that the costs were incurred primarily by Mr. Hall. If that is so, this order leaves him free to seek indemnification from Mr. Hall. In the meantime, however, the order is joint and several against both applicants.

[15] With her submissions, Ms. Buckley has provided a draft order. That order includes two paragraphs dealing with service going forward. There was no notice of motion or submissions with respect to those two requests. I am only dealing with the matter of costs. I make no order with respect to service as requested.

[16] In the end result, I order that the applicants pay costs to the respondent fixed in the amount of $93,746.74 on a joint and several basis.

Justice G.D. Lemon

Released: December 3, 2018