Court File and Parties

COURT FILE NO.: CV-18-00595241 MOTION HEARD: 20181128 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Danute Stankeviciene, Plaintiff AND: Martynas Jonusaitis, Defendant

BEFORE: Master B. McAfee

COUNSEL: A. Smith and N. Lombardi, Counsel for the Plaintiff E. Rogers, Counsel for the Defendant

HEARD: November 28, 2018

Reasons for Decision

[1] The plaintiff seeks costs of the defendant’s abandoned motion for security for costs on a partial indemnity basis in the all-inclusive sum of $21,847.65.

[2] The defendant submits that costs of the defendant’s abandoned motion should be payable in the cause. In the alternative, the defendant submits that costs should be fixed in the all-inclusive sum of $4,500.00, payable to the plaintiff.

[3] The defendant was permitted to “walked in” five cases that the defendant wished to rely upon. Two of the five cases were only provided to the plaintiff on the morning of the motion. However, I did not permit the defendant to “walk in” a summary of an additional nineteen cases prepared by defendant’s counsel. The summary of an additional nineteen cases had only been provided to plaintiff’s counsel on the morning of the motion. Defendant’s counsel did not bring copies of the nineteen cases to court. It would be unfair to require the plaintiff to respond to a summary of cases, without any prior notice and without copies of the actual cases. No case law was filed by the plaintiff. No party sought an adjournment to deliver further material.

[4] Rule 37.09(3) of the Rules of Civil Procedure provides:

(3) Where a motion is abandoned or is deemed to have been abandoned, a responding party on whom the notice of motion was served is entitled to the costs of the motion forthwith, unless the court orders otherwise.

[5] I am satisfied that the plaintiff is entitled to costs of the defendant’s abandoned motion. The defendant served a notice of abandonment on or about September 27, 2018, approximately eight weeks after the responding motion record was delivered.

[6] The affidavit of T. Edwards, legal assistant in the office of defendant’s counsel, sworn November 21, 2018, does not specifically state the reason or reasons for the abandonment of the motion. To the extent that the defendant relies on the statement at paragraph 2 of the affidavit concerning advice from the defendant prior to commencing the motion that the plaintiff owned property in Lithuania, the plaintiff’s responding affidavit does confirm some interest in property in Lithuania. To the extent that the defendant relies on articles that his counsel came across prior to cancelling cross-examinations, defendant’s counsel did not seek an adjournment of the security for costs motion to address any such concerns. The motion was abandoned. No issue was raised on the motion before me by defendant’s counsel concerning a lack of instructions.

[7] The amount of costs sought by the plaintiff, representing approximately ninety-nine hours of lawyers’ time, is too high in all of the circumstances.

[8] Moving and responding motion records were delivered. The responding motion record addresses the merits of the action and provided detailed evidence of the plaintiff’s financial circumstances as would be expected when responding to a motion for security for costs. Although some preparation for cross-examinations took place, the cross-examinations did not proceed. Facta were not delivered.

[9] In Boucher v. Public Accountants Council (Ontario), 2004 CarswellOnt 2541 (Ont. C.A.), the following is stated at para. 24:

While it is appropriate to do the costs grid calculation, it is also necessary to step back and consider the result produced and question whether, in all of the circumstances, the result is fair and reasonable. This approach was sanctioned by this court in Zesta Engineering Ltd. v. Cloutier (2002), 21 C.C.E.L. (3d) 161 (Ont. C.A.) at para. 4 where it is said:

In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.

[10] The defendant’s costs outline is in the amount of $4,178.70.

[11] Having regard to all of the circumstances of the defendant’s abandoned motion, in my view the all-inclusive sum of $10,000.00 is a fair and reasonable amount that the defendant could expect to pay for costs. These costs shall be payable by the defendant to the plaintiff within 30 days.

[12] After making this determination, I reviewed the offers to settle the issue of costs that had been provided to me in an envelope at the conclusion of the hearing. Neither party achieved a result as favourable as or more favourable than their offer to settle.

[13] Order to go as follows:

1. Costs of the defendant’s abandoned motion for security for costs are fixed in the all-inclusive sum of $10,000.00 payable by the defendant to the plaintiff within 30 days.

Master B. McAfee Date: November 29, 2018