Court File and Parties
Court File No.: CV-17-571626 Date: 2019-04-15 Superior Court of Justice - Ontario
Re: Robert Allan Perry, Plaintiff (Appellant) – AND – Neil D’Souza and Mass Fidelity Inc., Defendants
Before: E.M. Morgan J.
Counsel: Joseph Figliomeni, for the Appellant Alfred Schorr, for Eric Grossman (non-party Respondent)
Heard: Costs submissions in writing
Costs Endorsement
[1] On February 19, 2019, I released my judgment in which I upheld a ruling of Master Graham dismissing a motion by the Appellant to compel the non-party Respondent, Eric Grossman, to answer undertakings.
[2] In the usual course, costs follow the event. Appellant’s counsel submits that the appeal of the Master’s order was not frivolous, and I agree. But that is not the test for costs. Mr. Grossman was successful in defending the Master’s order, and he is entitled to his costs.
[3] Counsel for Mr. Grossman seeks costs on a substantial indemnity basis in the total amount of $6,895.00, plus an additional $250 for the preparation of costs submissions. He has submitted to me a copy of an Offer to Settle which he made on January 30, 2019, which he characterizes as a Rule 49 offer entitling his client to costs on an elevated scale. Counsel for the Appellant takes issue with this approach, and points out that one of the terms of the Offer entailed Mr. Grossman offering to comply with matters that he was in any case compelled to comply with under the Rules of Civil Procedure.
[4] Appellant’s counsel exchanged his own Costs Outline with Mr. Grossman’s counsel at the end of the hearing. It appears that Appellant, had he been successful, would have sought $8,250.00 on a partial indemnity basis. That amount is significantly higher than what Mr. Grossman’s counsel seeks on a substantial indemnity basis and is almost double what Mr. Grossman’s counsel says were his costs on a partial indemnity basis.
[5] The fixing of costs is governed by Rule 57.01, which sets out criteria for courts to consider in determining the appropriate amount in a given case. The Rule provides that courts are to take into account, inter alia, “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”: Rule 57.01((1)(0.b). Given that the Appellant’s costs on a partial indemnity scale were greater than Mr. Grossman’s costs on a substantial indemnity scale, the amount sought by Mr. Grossman cannot be said to exceed the Appellant’s expectations.
[6] Costs are always discretionary under section 131 of the Courts of Justice Act. I will exercise my discretion to round the request down slightly in recognition of the fact that the Offer made by Mr. Grossman may not have entirely conformed to the terms of Rule 49.
[7] The Appellant shall pay Mr. Grossman costs in the all-inclusive amount of $6,000.
Morgan J.