Lippa v. Advanced Software Concepts Inc., 2019 ONSC 3173

Court File and Parties

Court File No.: CV-13-475714 Motion Heard: 2019 03 21

Superior Court of Justice - Ontario

Re: Innocenzo Lippa v. Advanced Software Concepts Inc.

Before: Master R. A. Muir

Counsel: William G. Scott, counsel to the lawyers for the plaintiff Paul Macchione for the defendant

Supplementary Reasons for Decision - Costs

1On March 21, 2019 I heard a motion pursuant to Rule 37.14 of the Rules of Civil Procedure, RRO 1990, Reg. 194 (the “Rules”) for an order setting aside the order of the registrar dated July 5, 2018 dismissing this action for delay.

2I released my reasons for decision on March 22, 2019. I dismissed the plaintiff’s motion and requested written costs submissions. I have now received and considered those submissions.

3The plaintiff acknowledges that the defendant was the successful party and is entitled to costs. The plaintiff suggests that a partial indemnity costs award in the amount of $10,000.00 would be fair and reasonable in the circumstances of this motion.

4The defendant seeks substantial indemnity costs in the amount of approximately $64,000.00. Alternatively, the defendant requests partial indemnity costs in the amount of $45,000.00.

5The 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.

6When dealing with the costs of a motion or other proceeding, 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] OJ No. 4495 (CA) at paragraph 4 and Boucher v. Public Accountants Council for the Province of Ontario, [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.

7Apart from the operation of Rule 49.10 (offers to settle), elevated costs should only be awarded on the basis of a clear finding of reprehensible conduct. See Davies at paragraph 40.

8I am not prepared to make an order for the payment of costs on an elevated scale. There is no evidence of reprehensible conduct on the part of the plaintiff in connection with this motion. In my view, the plaintiff simply pursued the relief sought with understandable diligence given the serious nature of an administrative dismissal order.

9However, it is my view that a significant partial indemnity costs order is justified for this motion. This motion was important to the defendant. If the defendant was not successful in opposing the relief sought by the plaintiff it would find itself in the position of having to start from the beginning and defend an action more than five years old involving some events that took place 13 years earlier.

10I also note that a significant amount of work was done in relation to the motion, including three cross-examinations and the delivery by the defendant of a lengthy factum.

11Nevertheless, I do view the costs requested by the defendant as excessive for this motion. The defendant’s partial indemnity costs are approximately five times greater than the partial indemnity costs set out in the plaintiff’s costs outline. In particular, 80 hours of time to prepare a factum and a further 40 hours of time to prepare for argument of the motion appear excessive. This is a straightforward wrongful dismissal action. The underlying facts are not complex. The history of the litigation is regrettably brief. The law applicable to motions to set aside administrative dismissal orders is well settled.

12For these reasons, I have concluded that a 50% reduction to the defendant’s requested partial indemnity costs is fair and reasonable in the circumstances of this motion. The plaintiff shall pay the defendant’s partial indemnity costs of this motion in the amount of $22,500.00, inclusive of HST and disbursements. These costs shall be paid by June 24, 2019.

Master R. A. Muir