Court File and Parties

COURT FILE NO.: CV-11-442762 DATE: 20190128 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: FURIO OROLOGIO and IDA OROLOGIO, Plaintiffs AND: DOMENIC REALI, BENEDETTO PALMIGIANI, EMCO DISPOSAL SERVICES LIMITED and MATADOR CONSTRUCTION LTD., Defendants

BEFORE: Mr. Justice Stephen E. Firestone

COUNSEL: R. Calderwood, for the Plaintiff C. Papdopoules, for the Defendants, Domenic Reali Emco Disposal Services Limited, not represented J. Piccin, for the Defendants, Benedetto Palmigiani and Matador Construction Ltd.

HEARD: January 25, 2019

ENDORSEMENT

[1] By way of endorsement dated January 21, 2019, I vacated the trial date of February 11, 2019 after hearing the parties’ submissions regarding the defendants Benedetto Palmigiani and Matador Construction Ltd (collectively referred to as the “Palmigiani defendants”) contested adjournment request. The co-defendant Reali was unopposed to the adjournment. The plaintiffs were opposed to it.

[2] The statement of defence of the defendant Emco Disposal Services Limited was struck by the court on November 28, 2018.

[3] This was the first adjournment request. The trial date of February 11, 2019 was not marked peremptory.

[4] After considering the reasons for the adjournment request and the history of the matter, I was satisfied that there was no prejudice which could not be compensated for by costs if the adjournment was granted.

[5] In my endorsement, I indicated that today’s telephone case conference would take place in order to schedule a new trial date on a peremptory basis and to address the issue of any costs thrown away being sought by the plaintiffs. The defendant Reali seeks no costs as a result of the adjournment.

[6] At today’s telephone case conference a trial date of May 21, 2019 was fixed for 9 days peremptory to the Palmigiani defendants.

[7] I have reviewed the cost outlines submitted by the plaintiff’s and the Palmigiani defendants and have considered the submissions of counsel.

[8] Costs thrown away is a request for payment of a party’s costs for trial preparation which have been wasted and any trial preparation that will have to be redone as a result of the trial adjournment: See Pittiglio v. Pittiglio, 2015 ONSC 3603,2015 CarswellOnt 8290 (Ont.S.C.J.).

[9] The purpose of awarding costs thrown away is not to penalize a party who sought an adjournment of the trial or who was at fault for such adjournment due to a mistrial, but is rather meant to indemnify a party for the wasted time incurred for trial preparation or trial work arising from the adjournment or mistrial: See Graziano v. Ciccone 2017 ONSC 362, 2017 ONSC362 para. 8.

[10] In Boucher v. Public Accountants Counsel for the Province of Ontario (2004),2004 14579 (ON CA), 71 O.R. (3rd) 291 (C.A.), the Ontario Court of Appeal confirmed that the overall objective of fixing costs is to fix an amount that is fair and reasonable in the circumstances, rather than an amount fixed by the actual costs incurred.

[11] In Graziano at para. 18, the court confirms that the assessment of costs thrown away is not a task of precision or a scientific endeavor but is rather speculative and intuitive. The court is required to review the bill of costs carefully to ascertain what work intuitively falls within the category of costs thrown away as wasted time and work that does not fall within such category.

[12] Based on the procedural timeline including the new trial date of May 21, 2019, I am satisfied that there has been minimal wasted trial preparation or “costs thrown away”.

[13] I order that the Palmigiani defendants pay to the plaintiff’s their costs thrown away as well the costs of trial scheduling court preparation and attendance in the amount of $2,100 all-inclusive within 60 days.

Firestone J.

Date: January 28, 2019