Court File and Parties

Court File No.: CV-12-449692 Date: 2019-03-21 Ontario Superior Court of Justice

Between: Luis Avila, Plaintiff – and – Rui Couto, Joe Avila and Sonia Avila, Defendants

Counsel: Jason F. Katz and Ari J. Singer, for the Plaintiff/Responding Party Michael Best, for the Defendants, Joe Avila and Sonia Avila/Moving Parties

Heard: December 10, 2018, with written submissions on costs received as of March 5, 2019

Costs Endorsement

Kimmel J.

[1] The defendants Joe Avila and Sonia Avila (the “Hosts”) brought a motion for summary judgment under Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). The plaintiff’s claim against these moving defendants is predicated on a finding of social host liability against them for the conduct of the other defendant, Rui Couto (“Couto”), who was one of the guests at a birthday party they hosted at their home on March 27, 2010 (the “birthday party”). The claims against Couto were not the subject of the summary judgment motion.

[2] In my reasons for judgment released January 23, 2019 I found that there was a possibility that the same evidence upon which findings, including findings of credibility, would have to be made on this motion would also be the subject of assessment and findings at the continuing trial against Couto. This presented a risk of different findings at trial on certain central issues in the case. Thus, I determined that it was not in the interest of justice for summary judgment to be granted, and I dismissed the defendants’ motion.

[3] At the conclusion of the hearing counsel advised that they were reasonably confident that they would be able to reach an agreement on costs after my decision was released. Unfortunately, they have not been able to do so. I have received and considered the parties’ submissions on costs and the costs outlines that they have each provided and have taken them into account in reaching my decision on costs herein.

The Parties’ Positions on Costs

[4] The successful plaintiff on this motion seeks his costs on a partial indemnity scale, in the amount of $25,000.00 inclusive of all fees, disbursements and HST. A costs outline has been provided to support the amounts claimed. The costs submissions made on behalf of the plaintiff emphasize the importance of the issues on the motion (since it threatened the dismissal of the claim against two of the three defendants) and the work that was done by counsel in order to gather and synthesize the evidence of many witnesses and to research and prepare for argument in the developing areas of the law on summary judgment and social host liability.

[5] The defendants argue that there should be no costs given that the time spent, and the fruits of the efforts of counsel, on this summary judgment motion are not wasted in a case such as this where those efforts can be reused in the trial of the continuing action, relying on the reasoning in Candiano v. Yakubov, 2018 ONSC 2618. They go so far as to say that the parties have tendered the entire factual record that will be relied upon at trial and that the argument and evidence that was prepared for the motion will all be reusable at trial.

[6] In the alternative, the defendants suggest that any partial indemnity award of costs should be discounted to reduce the total number of lawyer hours dedicated to the motion, to reflect the partial indemnity tariff rates based on the year of call of the counsel involved and to exclude the costs of the cross-examination transcripts which they argue can serve as discovery. They contend that a partial indemnity award in the amount of $10,500.00 for fees and $1,341.95 for disbursements (all inclusive of HST) would be more in line with what they would have expected to pay if unsuccessful on this motion (and in line with their own costs outline).

Applicable Law and Principles

[7] I agree with the plaintiff’s starting premise that costs should follow the event and that he is entitled to an award of costs as the successful party on this motion.

[8] Pursuant to s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, the court has a broad discretion when determining the issue of costs. Rule 57.01 sets a non-exclusive list of factors that may be considered in the exercise of that discretion.

[9] I have considered those factors that are applicable in this case, including the result of the motion, the principle of indemnity (taking into account the seniority and rates of the lawyers involved), the amount at issue and the complexity and importance of the issues. I have also taken into account the amount of costs that the unsuccessful parties could reasonably have expected to pay in relation to this motion.

[10] There is an overarching objective in this exercise to fix an amount of costs that is fair and reasonable for the unsuccessful party to pay in the particular proceeding. In deciding what is fair and reasonable, the reasonable expectation of the unsuccessful party concerning the amount of costs that they may have to pay for a particular step in the proceeding is a relevant factor. (See Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.), at paras. 26 and 38) Since that case was decided, this factor has been expressly incorporated into Rule 57.01(0.b).

Costs Award

[11] While there may be some efficiencies and cost savings because of all of the work done on this motion, I do not consider this case to be analogous to Candiano or that it would be fair and just to defer all of the costs of this motion to trial. In my reasons for judgment on the motion I concluded that even though I had a preview of some of the evidence that will likely be presented at trial, because the focus had been on the evidence that was relevant to the question or whether or not to grant partial summary judgment in favour of two of the three defendants, I would not be in any different position than any other judge in terms of the eventual adjudication of the case as a whole, so I did not remain seized of this case for trial.

[12] The defendants have presented a costs outline that appears to be reasonable in terms of the hours, rates and number of lawyers involved, having regard to the complexity and importance of the issues and what was at stake, and it is also a logical proxy for their reasonable expectation of what they would have to pay if they lost. It is significantly lower than the plaintiff’s partial indemnity costs outline, although what the plaintiff has presented is not, in my view, outside of the range of reasonable. I am not inclined to engage in a lawyer-by-lawyer, hour-by-hour, analysis or comparison of the costs outlines of the parties as I would expect there to be a range of reasonable ways in which different law firms, lawyers and staff brief and prepare for motions.

[13] However, I do agree that, while it is not something that can be precisely quantified, there should be a recognition in this case that there will be some efficiencies gained in the trial process from all the work that was done for this motion (and some disbursements that will be avoided, for example the cross-examination transcripts which no doubt will be utilized), even though I have not accepted the defendants’ contention that all of the work and expense can be utilized for trial. Accordingly, I have decided to reduce the amount of partial indemnity costs claimed by the plaintiff.

[14] Taking into account all of the applicable factors and considerations, and in the exercise of my discretion, I award partial indemnity costs of this motion to the plaintiff in the amount of $12,500.00 plus disbursements of $1,341.95 (both inclusive of HST) which is payable by the defendants forthwith and, in any event, within 30 days of the date of this endorsement.

Kimmel J. Released: March 21, 2019