Court File and Parties

COURT FILE NO.: 13-57421 A1

DATE: 2019/11/25

COURT OF ONTARIO,

SUPERIOR COURT OF JUSTICE

RE: Ozerdinc Family Trust, Muharrem Ersin Ozerdinc, Marion Kathleen Grimes, Site Preparation Limited, Site Preparation Limited Partnership, 1624158 Ontario Inc., 1634159 Ontario Inc. and Ozerdinc Family Trust No. 2, Plaintiffs

AND:

Gowling Lafleur Henderson LLP and Mark Siegel, Defendants

AND:

Raymond Chabot Grant Thornton LLP, Third Party

BEFORE: Mr. Justice Calum MacLeod

COUNSEL: Peter Cronyn & Frances Shapiro Munn, for the Defendants Matthew Halpin & Patrick Levesque, for the Third Party Katie Black, for the Plaintiff

HEARD: Costs submissions in writing

COSTS endorsement

[1] This is to dispose of the costs of the motion argued before me on August 21, 2019 (see 2019 ONSC 5484). Costs submissions were made in writing. The plaintiffs did not seek costs nor did any other party seek costs against the plaintiff.

[2] The motion was for an order that the same judge hear the third party proceeding as was to hear the trial of the main action. I dismissed that motion for several reasons set out in the decision but primarily because I held that judicial assignments are not ordinarily a justiciable issue and because the motion as originally framed appeared to be a collateral attack on a decision already made by Labrosse J. (2017 ONSC 6).

[3] Both parties argue that the motion should not have been necessary and both parties argue that the position taken by the other during argument was different from that originally taken in the materials. For example, the defendants conceded that they could not seek an order that the matters be tried one after the other. The third party conceded that it was not seeking an order prohibiting the assignment of the same judge. Ironically this is now moot because I am advised that the main action settled following a mediation. Nevertheless, the third party action for contribution and indemnity remains a live issue and I am obliged to decide the costs of the motion.

[4] I see no reason that a modest award of costs should not follow the event. In Ontario, costs are presumptively fixed and payable at each step in the proceedings. The defendants brought the motion and were unsuccessful.

[5] On the other hand, I do not agree that an award of more than $14,000 for a procedural motion is warranted. The issues as argued did not justify two lawyers spending collectively over 40 hours. I note as well that the action is case managed. This question could have been resolved at a case conference. The amount of costs is disproportionate to the issue that was in dispute.

[6] The third party shall have costs on a partial indemnity scale fixed at $5,000.00 to be paid within 30 days.

Mr. Justice C. MacLeod

Date: November 25, 2019

COURT FILE NO.: 13-57421 A1

DATE: 2019/11/25

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Ozerdinc Family Trust, Muharrem Ersin Ozerdinc, Marion Kathleen Grimes, Site Preparation Limited, Site Preparation Limited Partnership, 1624158 Ontario Inc., 1634159 Ontario Inc. and Ozerdinc Family Trust No. 2, Plaintiffs

AND:

Gowling Lafleur Henderson LLP and Mark Siegel, Defendants

AND:

Raymond Chabot Grant Thornton LLP, Third Party

BEFORE: Mr. Justice Calum MacLeod

COUNSEL: Frances Shapiro Munn, for the Defendants Matthew Halpin, for the Third Party Katie Black, for the Plaintiff

Costs endorsement

Mr. Justice Calum MacLeod

Released: November 25, 2019