Court File and Parties

Court File No.: CV-14-2810-00 Date: 2018 12 21

Superior Court of Justice - Ontario

Re: Mark Birikorang and Melissa Charles, Plaintiffs v. Diana Vecchio, Defendant

Before: Kumaranayake J.

Counsel: Matthew Barteaux, for the Plaintiffs Jeffrey A. Small, for the Defendant

Costs Endorsement

[1] The Defendant brought a motion returnable on December 18, 2018 seeking a variety of relief against the Plaintiff Mark Birikorang, which in summary, is as follows:

a. Leave to bring the motion, if necessary;

b. An order compelling Mark Birikorang to attend for a further examination for discovery;

c. An order for a further and better affidavit of documents and to produce additional documents and/or information relating to Soren Custom Inc. and The Collective S.C. Inc.;

d. Adjourning the trial of this matter, if necessary;

e. An order compelling Mark Birikorang to advise whether or not he has adverse costs protection and if so, to produce a copy of the policy;

f. Costs of the motion on a substantial indemnity basis.

[2] The Defendant’s motion record, factum and book of authorities was served on December 7, 2018. The motion record is large and included a 13 page affidavit, with exhibits from A to U; transcripts of the examinations for discovery of the plaintiff held on April 13, 2015 and March 22, 2017, and the pleadings.

[3] The Plaintiffs served their responding motion record and factum on December 12, 2018.

[4] The substantive issues raised in the motion were not argued as the parties settled these issues. Accordingly, I made an order on consent by which the Plaintiff Mark Birikorang is required to attend for a further examination for discovery; and to produce the requested documents/information relating to Soren Custom Inc. and The Collective S.C. Inc. Also on consent, the trial of this matter was removed from the sittings of January 7, 2019 and placed on the sittings of January 13, 2020. The parties did not agree on the issue of costs. Following argument, I reserved my decision with respect to costs.

[5] The Defendant seeks costs in the amount of $7,000 payable within 30 days and provided a costs outline. The Plaintiff, Mark Birikorang’s position is that there should be no costs, but if costs are ordered, those costs should be payable in the cause, or fixed in the amount of $1,000.

[6] By way of brief background, this action arises from a motor vehicle accident which occurred on June 30, 2012. The Plaintiff Mark Birikorang’s claim for damages includes a claim for loss of income (past, present and future). The Plaintiff, Mark Birikorang, was first examined for discovery on April 13, 2015 and provided certain information about his employment history and sources of income.

[7] Subsequent to this examination for discovery, the Defendant learned from its own inquiries that the Plaintiff had other employment/sources of income which had not previously been disclosed. As a result, a second examination for discovery was held on March 22, 2017.

[8] In November 2017, as a result of receiving and reviewing the Plaintiff, Mark Birikorang’s income tax return for 2017, the Defendant learned that he was a shareholder of The Collective S.C Inc. The Defendant requested further information and that the Plaintiff, Mark Birikorang attend for a third examination for discovery.

[9] In summary, the Defendant’s position is that it attempted to preserve the trial of January 2019 by requesting that the Plaintiff, Mark Birikorang, agree to attend for a third examination and provided a list of additional items that were being requested to be produced as a result of learning that the Plaintiff Mark Birikorang held shares in The Collective S.C. Inc. The Defendant’s counsel proposed dates for a further examination in early December 2018.

[10] The Defendant submits that the Plaintiff Mark Birikorang not only declined to agree to a third examination for discovery, but took the position that the Defendant was not entitled to a further examination for discovery of the Plaintiff, Mark Birikorang.

[11] The affidavit filed in support of the Defendant’s motion contains numerous letters from November 27, 2018 and onwards by which the Defendant sets out the basis of the request for further productions and a further examination of the Plaintiff, Mark Birikorang.

[12] The Plaintiff, Mark Birikorang’s position is that it was not necessary for the Defendant to bring this motion and that had the Defendant’s counsel been more patient, all of the information would have been provided without the necessity of a motion. Counsel for the Plaintiff, Mark Birikorang invited me to infer from his correspondence of December 12, 2018 that the Plaintiff, Mark Birikorang was prepared to attend for a third examination for discovery. It was submitted that by providing certain of the requested information, the Plaintiff, Mark Birikorang was correcting answers given in previous examinations for discovery and conceded that the Defendant was entitled to a further examination without the necessity of obtaining leave.

[13] I find that it was necessary for the defendant to bring this motion. By his letter dated December 5, 2018, counsel for the Plaintiff, Mark Birikorang clearly stated that his client was not prepared to attend for a third examination. While further information was provided by his letter dated December 12, 2018, the subject of a further examination was not mentioned at all in that letter. The letter concludes by stating that the responding materials for the motion would be delivered under separate cover.

[14] Therefore, I cannot infer from either of these letters that the Plaintiff, Mark Birikorang was agreeable to attend for a further examination. Based on the evidence before, I find that as of December 12, 2018, the Plaintiff, Mark Birikorang was still opposed to this.

[15] I therefore find that the Defendant is entitled to costs for this motion.

[16] With respect to quantum, I have reviewed the costs outline provided and I have considered the factors outlined in Rule 57.01 of the Rules of Civil Procedure. The motion did not resolve until the eve of the motion. The Defendant was successful, although there was no argument necessary of the substantive issues as the parties reached a consent.

[17] The materials for the motion are not particularly complicated. The Defendant’s costs outline claims over 25 hours in total for the preparation of the motion materials, which would include the factum and book of authorities, and the amount claimed is 7,572.70, this also includes preparation for the motion and attendance at the motion. Given the lack of complexity of the motion materials and that the motion was not argued, I do not find that this is a reasonable amount and find that this is excessive. I reduce the fees to $4,000, inclusive of HST on a partial indemnity basis.

[18] The Defendant claims $560.50 for disbursements, inclusive of HST. I find that this is reasonable.

[19] Therefore, I order that, the Plaintiff, Mark Birikorang, shall pay costs to the Defendant in the amount of $4,560.50. In exercising my discretion, these costs shall be payable no later than February 20, 2019.

Kumaranayake J. DATE: December 21, 2018