COURT FILE NO.: CV-16-545824
MOTION HEARD: 2018 06 20 and 2018 09 17
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ara Papazian and Arpy-Ara Company Limited, applicants
v.
Morris Manning, Q.C. Professional Corporation, Frederick J. Shuh and Shuh Cline & Grossman, respondents
BEFORE: MASTER R.A. MUIR
COUNSEL: Theresa R. Simone for the respondent Morris Manning, Q.C. Professional Corporation Mark Grossman for the respondents Frederick J. Shuh and Shuh Cline & Grossman
Leo Klug for the applicants
SUPPLEMENTARY REASONS FOR DECISION - COSTS
[1] These supplementary reasons for decision arise from a motion brought by the respondent Morris Manning, Q.C. Professional Corporation (“Mr. Manning”). Mr. Manning sought an order that Mr. Klug be prohibited from appearing as counsel on a pending motion to quash and set aside a summons to witness. Mr. Manning’s motion also sought an order striking various portions of the applicants’ affidavit evidence on this motion and on the motion to quash and a further motion to remove Mr. Klug as lawyer of record for the applicants.
[2] I released my reasons for decision on October 25, 2018. I made an order prohibiting Mr. Klug from appearing as counsel on the motion to quash. I declined to grant the relief Mr. Manning requested with respect to the applicants’ affidavit evidence.
[3] I also requested written costs submissions. I have now received and considered those costs submissions.
[4] Mr. Manning seeks partial indemnity costs in the amount of $12,429.90 inclusive of HST and disbursements. He takes the position that he was the successful party on this motion and should be entitled to costs in accordance with the court’s usual practice. Mr. Manning submits that the amount requested is fair and reasonable for a motion of this nature.
[5] The respondents Frederick J. Shuh and Shuh Cline & Grossman (collectively, “Mr. Shuh”) also seek costs. Mr. Shuh supported the position taken by Mr. Manning. Mr. Shuh delivered a factum and attended on one day of argument. Mr. Shuh asks for $3,100.00 plus HST.
[6] The applicants submit that success on the motion was divided and therefore no costs should be awarded. Alternatively, the applicants argue that the costs requested are excessive and any costs order should not be payable until after the removal motion has been argued and determined.
[7] The court’s general authority to award costs as between parties to litigation is found in section 131(1) of the Courts of Justice Act, RSO 1990, c C.43, which provides that costs are in the discretion of the court. Rule 57.01(1) allows the court to consider the result achieved in the proceeding or motion. This Rule also includes a non-exhaustive list of factors the court may consider when awarding costs. Rule 1.04(1.1) is also applicable. It requires the court in applying the Rules to make orders that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding.
[8] When dealing with costs, the overall objective for the court is to fix an amount that is fair and reasonable for the unsuccessful party who generally must pay the costs of the successful party. See Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (ON CA), [2002] OJ No. 4495 (CA) at paragraph 4 and Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] OJ No. 2634 (CA) at paragraph 26. In Davies v. Clarington (Municipality), 2009 ONCA 722 the Court of Appeal stated as follows at paragraph 52:
Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.
[9] These are the factors and principles I have considered and applied in determining the costs issues on this motion.
[10] In my view, Mr. Manning was mostly successful on this motion. It is true that success was divided but the main focus of the motion was the requested order prohibiting Mr. Klug from arguing the motion to quash. The relief related to the applicants’ affidavit evidence was very much a secondary consideration. Mr. Manning is therefore entitled to costs, with some reduction on account of his lack of complete success.
[11] However, I agree with the applicants that the costs requested by Mr. Manning are excessive for a motion of this nature. I do not view this motion as complex from a legal or factual perspective. The law was straightforward. There was little disagreement with respect to the important underlying facts. Much of the evidence and argument will also apply to the pending motions. The applicants’ costs are significantly less than Mr. Manning’s costs. I also note that this motion had to be argued over a two day period due to no fault on the part of the applicants. Some inefficiencies would have resulted from the divided argument.
[12] For these reasons, it is my view that a 50% reduction in the costs requested by Mr. Manning is fair and reasonable in the circumstances of this motion.
[13] I also agree with the applicants that this motion is just one part of a larger picture. Two further motions are to follow. Mr. Manning is certainly entitled to his costs of this motion, however, in the circumstances it is fair and reasonable for those costs to be paid after the determination of the remaining two motions.
[14] In my view, Mr. Shuh is entitled to nominal costs only. Mr. Shuh simply supported the position taken by Mr. Manning. Very little work was necessary on his part. Mr. Shuh largely adopted the positions taken by Mr. Manning. In my view, costs in the amount of $500.00 in favour of Mr. Shuh are fair and reasonable in the circumstances.
[15] I therefore order as follows:
(a) the applicants shall pay Mr. Manning’s partial indemnity costs of this motion fixed in the amount of $6,200.00, inclusive of HST and disbursements;
(b) the applicants shall pay Mr. Shuh’s partial indemnity costs of this motion fixed in the amount of $500.00, inclusive of HST and disbursements; and,
(c) these costs shall be paid 30 days after the final determination of the motion to remove Mr. Klug as lawyer of record for the applicants.
Master R.A. Muir
DATE: 2018 12 04