COURT FILE NO.: CV-18-1527-00

DATE: 2019 10 24

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BIRDSEYE SECURITY INC. v. DANILO MILOSEVIC also known as DANNY MILOSEVIC carrying on business as VCMS SECURITY SERVICES and VCMS SECURITY

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DANILO MILOSEVIC also known as DANNY MILOSEVIC carrying on business as VCMS SECURITY SERVICES and VCMS SECURITY v. BIRDSEYE SECURITY INC. and MILE GRABOVICA

BEFORE: Kumaranayake J.

COUNSEL: Tyler H. McLean, for the Plaintiff/Defendants by Counterclaim

Rocco Galati, for the Defendants/Plaintiffs by Counterclaim

COSTS ENDORSEMENT

Background

1The Plaintiff/Defendants by Counterclaim (“the moving party”) brought a motion to strike certain paragraphs of the Amended Amended Counterclaim. By my Order of April 29, 2019, I granted some of the relief requested by the moving party and gave leave to the Defendants/Plaintiffs by Counterclaim (“the responding party”) to further amend its pleading and deliver a Fresh as Amended Statement of Defence and Counterclaim (see 2019 ONSC 2676 for my reasons).

2At the conclusion of argument of the motion, each counsel filed a bill of costs and confirmed that each was seeking costs on a partial indemnity basis. Counsel were not able to resolve the issue of costs and submitted written submissions in accordance with the timelines that were ordered.

3The moving party seeks costs in the amount of $7,784.53, inclusive of HST and disbursements, payable in 30 days. In support of its position, the moving party submits:

a) It sought to strike 1,218 words from the Amended Amended Counterclaim and it was 93.9% successful, as all but 74 words were struck;

b) The responding party submitted a bill of costs in the amount of $10,464.37 and therefore, the amount the moving party seeks is reasonable as it is within what the responding party contemplated;

c) The motion should not have been opposed;

d) The motion was argued in less than one hour, but the responding party had previously indicated that more than one hour would be needed and therefore a long motion date was required; and

e) The responding party should not have included in its Factum and Book of Authorities cases that related to the Federal Court Rules when this matter was governed by the Rules of Civil Procedure.

4The responding party submits that the parties should bear their own costs of the motion. In the alternative, it submits that costs of the motion be ordered “in the cause.”

5In the further alternative, the responding party submits that if costs are to be apportioned on the basis of the moving party’s submission that it was 93.9% successful in terms of the number of words that were struck, then costs should be fixed at the difference between 66% of $10,464.37 (the amount claimed in the responding party’s bill of costs) and 93.9% of $7,784.53 (the amount claimed in the moving party’s bill of costs). That difference is $403.14.

6It submits that:

a) A word count of what was struck is not the appropriate method to determine costs; and

b) The moving party should be responsible for any scheduling issues of the motion.

DISCUSSSION

Discussion

7The factors to be considered in exercising my discretion with respect to costs are set out in Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

8Although there was mixed success on this motion, the moving party was overall more successful than the responding party and therefore, is entitled to costs. In making that determination, I have reviewed the portions of the pleading that were struck, why they were struck, and not the number of words that were struck.

9The moving party relies on 1483677 Ontario Limited v. Crain, 2010 ONSC 1353 in support of its position. In that case, Himel J. reviewed circumstances when costs are awarded on a partial indemnity basis, substantial indemnity basis and full indemnity basis. I do not need to determine if substantial indemnity or full indemnity is the appropriate scale of costs. As set out above, at the conclusion of the motion before me, counsel for both parties indicated that they were seeking costs on a partial indemnity basis. I agree that this is the appropriate scale of costs for the motion before me.

10With respect to quantum, I have considered the factors listed in Rule 57.01(1). I have determined that the quantum claimed by the moving party is excessive. There was complexity to the matter not because of the nature of the motion, but as a result of the animosity between the parties (the parties are also involved in other litigation). The issues are important to each party.

11The time claimed for the attendance at the motion was an estimate of eight hours. However, as the moving party submitted, the motion was argued in less than one hour. Further, I also find that the time claimed for preparation of the moving party’s Factum and Book of Authorities is excessive given that the matter was not complex.

12I do not accept the moving party’s submission that the responding party should be held responsible for the motion being argued in less than one hour. If there was any uncertainty as to how long was needed to argue the motion, it is preferable to overestimate the time needed as opposed to underestimating it.

13For the above reasons, I reduce the fees to $4,000, inclusive of HST, on a partial indemnity basis. The amount claimed for disbursements is $235. I find this to be reasonable and I make no adjustments. Therefore, I find that the amount of costs that are reasonable and fair in the circumstances is $4,235, inclusive of HST and disbursements, on a partial indemnity basis.

14Given that the moving party was overall more successful than the responding party, I decline to apportion costs as requested by the responding party.

Order

Order

15The Defendants/Plaintiffs by Counterclaim shall pay costs to the Plaintiff/Defendants by Counterclaim fixed at $4,235. In exercising my discretion, these costs shall be payable within 30 days.

___________________________

Kumaranayake J.

DATE: October 24, 2019

COURT FILE NO.: CV-18-1527-00

DATE: 2019 10 24

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BIRDSEYE SECURITY INC. v. DANILO MILOSEVIC also known as DANNY MILOSEVIC carrying on business as VCMS SECURITY SERVICES and VCMS SECURITY

- and -

DANILO MILOSEVIC also known as DANNY MILOSEVIC carrying on business as VCMS SECURITY SERVICES and VCMS SECURITY v. BIRDSEYE SECURITY INC. and MILE GRABOVICA