Chernyak v. Chvartsman, 2019 ONSC 440

RULING ON COSTS

DE SA J.:

1I decided in favour of the Plaintiff, Roman Chernyak and dismissed the Defendant’s, Ms. Chvartsman’s motion. The Plaintiff now seeks costs on the motion in the sum of $13,795.55 on a full indemnity basis or alternatively, the sum of $9,456.35.

2Ms. Chvartsman takes the position that the costs sought are excessive.

Analysis

3Costs awards under section 131 of the Courts of Justice Act, R.S.O. 1990, c C. 43, are highly discretionary.

4Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, sets out the factors to be considered including the amount of costs an unsuccessful party would expect to pay and the complexity of the proceeding. Assessing costs is not simply a matter of arithmetic, where dockets are tabulated. The overarching principle is that the court’s assessment should be fair and reasonable in light of all the circumstances.

5Section 57.01 provides as follows:

57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) 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;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs. R.R.O. 1990, Reg. 194, r. 57.01 (1); O. Reg. 627/98, s. 6; O. Reg. 42/05, s. 4 (1); O. Reg. 575/07, s. 1.

6In my view, given the nature of the proceeding, an award of $9,000 would be appropriate. The matter was not particularly complex. However, the motion itself was unnecessary and the Plaintiff deserves reasonable compensation. I disagree that the costs should be reserved in the cause.

7Accordingly, I award costs in favour of the Plaintiff in the amount of $9,000 plus HST, and this amount is to accrue post-judgment interest in accordance with s. 129(1) of the Courts of Justice Act.