Court File and Parties

COURT FILE NO.: CV-17-588620 DATE: 2019-09-16

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SARKIS KALFAYAN and JOSEPH CLARENCE LANDRY, Plaintiffs AND: AMANDA STANLEY and RYAN JOHN ATKINSON, Defendants

BEFORE: Schabas J.

COUNSEL: Kelly Hou, Counsel, for the Plaintiffs Eric Brousseau, Counsel for the Defendant, Amanda Stanley

HEARD: August 2, 2019

COSTS ENDORSEMENT

[1] On August 9, 2019, I granted summary judgment to the defendant Amanda Stanley, dismissing this action: Kalfayan et al. v Stanley et al., 2019 ONSC 4680. I invited written submissions on costs and this is my decision on that issue.

[2] The defendant has provided a cost outline and seeks costs in the range of $25,000 – $30,000. The outline shows full indemnity at $32,380.00, substantial indemnity at $29,326.45 and partial at $23,376.43. She submits that she should receive elevated costs, on a substantial indemnity basis, as she was entirely successful, as her counsel had predicted in a letter to the plaintiffs’ counsel in November 2018 in which the defendant offered to let the plaintiffs dismiss the action and pay costs of $7500.00.

[3] The plaintiffs, not surprisingly, disagree, arguing that a fair and reasonable award would be in the range of $10,000 - $15,000. They have filed a bill of costs for just under $9,000 on a substantial indemnity scale, and they point out that the November letter does not satisfy the requirements of Rule 49, and that the offer to settle was only open for acceptance for two weeks.

[4] The Court has a broad discretion when determining the issue of costs. Rule 57.01(1) sets out factors to be considered to achieve a result that is fair and reasonable for the unsuccessful party to pay: Boucher v. Public Accountants Counsel for Ontario, 2004 14579 (ON CA), 2004 14579 (Ont. C.A.). In my view, the defendants were successful on the motion and should be awarded costs.

[5] An award of costs on a substantial indemnity basis is exceptional, and should be made only in rare and special circumstances.

[6] In my view this is not a case justifying a substantial indemnity award. As the plaintiffs point out, the case raised important issues for the plaintiffs and they should not be penalized for asserting the action. While the offer to settle, in retrospect, ought to have been accepted, it expired long before the motion was heard.

[7] In my view, costs should be on a partial indemnity scale. As to the actual amount, I do not find the costs claimed excessive, and award the defendant costs of $23,376.43 inclusive of disbursements and taxes.

Schabas J.

Released: September 16, 2019