Court File and Parties

Court File No.: CV-18-312 Date: 2019-09-06 Superior Court of Justice - Ontario

Re: Johannes Antonius Huntjens and Angela Gerard Huntjens, Plaintiffs And: Justin Obradovic, Defendant

Before: Justice D.A. Broad

Counsel: John G. Morrissey, for the Plaintiffs Doug LaFramboise, for the Defendant

Costs Endorsement

[1] The parties have been unable to settle the issue of costs and have each delivered submissions on costs. In my Endorsement I directed that the plaintiffs would not have a right to make reply submissions without leave. By letter dated August 20, 2019 Mr. Morrissey for the plaintiffs requested leave to make brief reply submissions to address what he termed inaccuracies in the defendant’s submissions. Having reviewed the reply submissions, I am satisfied that they do constitute proper reply and are helpful in informing my decision on costs. Leave is therefore granted to the plaintiffs to make the reply submissions.

[2] The plaintiffs seek costs on the motion on a partial indemnity in the amount of $7,506.35, comprised of fees in the sum of $5,366.37, HST on fees in the sum of $697.63, disbursements in the sum of $1,276.42 and HST on taxable disbursements in the sum of $165.93.

[3] The plaintiffs submit that it was reasonable for them to devote resources to the motion, given the potential seriousness of an order discharging the Certificate of Pending Litigation (CPL), by raising the possibility that the plaintiffs may have been unable to collect any judgment they may obtain at trial. Moreover, the defendant’s Costs Outline setting forth their partial, substantial and full indemnity costs demonstrates that the plaintiffs’ claim for costs was well within the defendants’ reasonable expectations of being required to pay for costs if they were unsuccessful on the motion.

[4] The defendant submits that the plaintiffs’ current claim for costs exceeds the amount set forth in their Costs Outline filed at the conclusion of argument. The defendants also submit that Mr. Morrissey’s partial indemnity hourly rate is excessive, that the examination was for trial and not for the motion and that there was insufficient detail given for the time of attendance at and preparation for the examination.

Guiding Principles

[5] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, provides that "subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the cost shall be paid."

[6] The factors to be considered by the court, in the exercise of its discretion on costs, are set forth in sub-rule 57.01(1), to which I have had regard.

[7] It is well known that the overall objective in dealing with costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful party. The expectation of the parties concerning the quantum of costs is a relevant factor to consider. The court is required to consider what is "fair and reasonable" having regard to what the losing party could have expected the costs to be (see Boucher v. Public Accountants Council (Ontario), 2004 14579 (ON CA), [2004] O.J. No. 2634 (Ont. C.A.) at para. 26 and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, 2005 1042 (ON CA), [2005] O.J. No. 160 (Ont. C.A.)).

Analysis

[8] I find that the plaintiffs are not bound by their Costs Outline filed at the conclusion of argument. My Endorsement specifically provided that the parties may file updated Costs Outlines. Mr. Morrissey explained in his Reply submissions that, upon review, he discovered time that should have been but was not included in the original Costs Outline.

[9] I do not find Mr. Morrissey’s partial indemnity rate of $177 per hour to be unreasonable. Mr. LaFramboise takes no issue with the time spent by counsel for the plaintiffs. The total time spent by Mr. LaFramboise at 28.8 hours was equivalent to the time spent by Mr. Morrissey. The defendant’s Costs Outline confirms that the partial indemnity costs claimed by the plaintiffs were within the reasonable expectations of the defendant.

[10] I do not agree that the examination conducted of the defendant related to trial and not the motion. It was clearly a cross-examination and not an examination for discovery.

[11] I find that the partial indemnity costs claimed by the plaintiffs represents a fair and reasonable amount for the defendant to pay in the particular circumstances of the case.

Disposition

[12] It is ordered that the defendant pay costs to the plaintiffs in the sum of $7,506.35 within 30 days hereof.

D.A. Broad

Date: September 6, 2019