Court File and Parties

Court File No.: CV-12-466910 Date: 2019-01-07 Superior Court of Justice – Ontario

Re: Maria Pia Cannito, Plaintiff And: Madison Properties Inc., Defendant

Before: A.J. O’Marra

Counsel: Ian A. Little and Dianna Morello, for the Plaintiff Victor Galleguillos and Sloane Bernard, for the Defendant

Heard: October 2-3, 2018

Costs Endorsement

[1] The plaintiff brought an action claiming liability and damages against the defendant as a result of her tripping and falling in a parking lot owned by the defendant on June 27, 2012. The plaintiff had agreed at pretrial on damages of $20,000.00 and the matter proceeded only on the question of liability. The trial was conducted under the simplified procedure rules (Rule 76.12) and was completed in 2½ days. The plaintiff’s action was dismissed with costs awarded to the defendant, (see 2018 ONSC 6190).

[2] The defendant requests costs payable by the plaintiff on a partial indemnity basis in the amount of $45,399.84 inclusive of HST and disbursements.

[3] Pursuant to s. 131(1) of the Courts of Justice Act, costs of and incidental to a proceeding are at the discretion of the court. Factors the court should consider in the exercise of its discretion in the award of costs are set out in Rule 57 of the Rules of Civil Procedure. In addition to the result of the action, and any offer to settle the factors in Rule 57, I consider the principle of indemnity, including the experience of the lawyer for the party entitled to costs as well as rates charged and hours spent, the amount claimed and the amount recovered, and other matters such as offers to settle under Rule 49.

[4] The defendant notes that the plaintiff issued a statement of claim on November 2, 2012 claiming $550,000.00 in damages plus prejudgment interest and costs. There was no amendment as to claim prior to dismissal of the action however, at a pretrial conference on April 23, 2018 damages were agreed upon in the amount of $20,000.00. In my view, there must be some proportionality to the amount of costs claimed and the quantum of damages as agreed to between the parties.

[5] The action involved the issue of liability with respect to whether or not the defendant breached its duty of care under the Occupiers Liability Act. While both parties retained experts the issue was relatively straightforward as to whether or not the speed bump in question was properly marked and maintained. It was a matter of only moderate complexity. The matter was decided on the basis of the noted and photographed conditions of the speed bump relative to the applicable standards as agreed to by both party experts.

[6] With respect to offers to settle, on April 26, 2018 the plaintiff offered settlement in the amount of $35,000.00, plus prejudgment interest, costs and disbursements. On April 26, 2018 the defendant offered $9,995.00 plus prejudgment interests, costs and disbursements. On May 11, 2018 the defendant offered to settle by dismissal of the action without costs.

[7] While there were several offers to settle prior to trial, the offers that remained open when the trial began were dismissal without costs by the defendant and $9,995.00 by the plaintiff. The quantum for costs should not only be proportionate to the damages agreed between the parties, but also in consideration of the range of offers exchanged.

[8] In addition, a factor noted by the plaintiff, I take into account that she is 65 years of age and a non-earner living in a rental accommodation.

[9] The defendant seeks over $30,000.00 in fees and $14,074.89 for disbursements, $12,250.00 of which is for expert fees. The plaintiff contends that the number of hours as cited by the defendant in preparation for a 2½ day trial conducted under the simplified procedures rule, and the cost of the defendant’s experts’ report at several times more than the cost of their expert’s report are excessive. As an example, with respect to preparation time, the 85.75 hours claimed to prepare for a 2½ day summary procedure trial in the face of a $9,995.00 offer and agreed damages of $20,000.00 is grossly excessive. The costs sought by the defendant are not what an unsuccessful party would expect to pay in this case.

[10] The plaintiff submits that $14,000.00 for fees, $6,000.00 for assessable disbursements for a total of $20,000.00 is fair and proportionate costs award in this action. I agree. The costs sought by the defendant are excessive relative to the amount in dispute at trial. They exceed what an unsuccessful litigant might reasonably expect in a case in which the issues were not overly complex.

[11] In the result, I consider the award of costs to the defendant in the amount of $20,000.00, inclusive of disbursements, in the circumstances of this case to be fair and reasonable.

A.J. O’Marra, J.

Date: January 7, 2019