Court File and Parties
COURT FILE NO.: 27768/18
DATE: 2019-11-29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RICHARD GIONETTE and ROBIN GIONETTE Plaintiffs
– and –
CYNTHIA VANIER and PIERRE VANIER Defendants
Counsel:
Donald R. Orazietti, Q.C. Counsel for the Plaintiffs
Eric O. Gionet, Counsel for the Defendants
HEARD: Written Submissions
Reasons on Costs
GAREAU J.
[1] The issue is the costs with respect to a motion brought under Rule 21.01(1)(2) and (3) by the plaintiffs for an order striking the statement of defence without leave to amend and for judgment on the claim.
[2] This motion was brought on October 25, 2018. It was defended by the defendants who filed a factum and book of authorities. The motion was adjourned from time to time and ultimately a hearing date was set for September 20, 2019. On that day counsel for the parties embarked in resolution discussions and the motion was not heard but adjourned to October 29, 2019 for argument. Prior to the hearing date, on October 28, 2019, the motion brought by the plaintiffs was withdrawn subject to counsel making written submissions as to costs by November 28, 2019.
[3] The court has had the benefit of written submissions from both counsel for the plaintiffs and the defendants, which it has considered.
[4] As set out in section 131(1) of the Courts of Justice Act, costs are in the discretion of the court subject to any provision in the rules that may assist the court in the exercise of its discretion.
[5] There is a presumption that the responding party is entitled to costs on a motion that is withdrawn or abandoned. In particular, Rule 37.09(3) provides that “where a motion is abandoned or is deemed to have been abandoned, a responding party on whom the notice of motion was served is entitled to the costs of the motion forthwith, unless the court orders otherwise.”
[6] The plaintiffs ask that the issue of costs pertaining to the abandoned motion be adjourned to the trial judge to be dealt with at the conclusion of the action. The defendants ask that costs be ordered now and be payable now. The Rules of Civil Procedure favours the position advanced by the defendants and, in particular, Rule 37.09(3) provides for costs of an abandoned motion being determined “forthwith” and Rule 57.03(1) provides for the fixing of costs which are payable within 30 days on the hearing of a contested motion. The practice of the court is that it is preferable for the judge hearing or dealing with the motion to adjudicate on costs as it is this judge who is aware of the situation and in the best position to deal with the costs of the motion and not the trial judge. There are exceptions to this practice to be made in “exceptional” circumstances. There are no exceptional circumstances in this case which would take it outside of the usual practice, as provided for in the Rules of Civil Procedure.
[7] Without commenting on the merits of the motion brought by the plaintiffs, the defendants are clearly entitled to costs of the abandoned motion. As to the quantum of cost, the defendants are asking the court to fix costs at $14,515.08 on a partial indemnity basis. As noted in paragraph 27 of their written submissions on costs, the plaintiff takes the position that “the request for costs is excessive and exceeds all the costs of the plaintiff from the issuing of the claim on this 18-month-old file”.
[8] Although counsel for the defendants did attend from Barrie to Sault Ste. Marie on the motion on September 30, 2019, the motion was not argued but rather resolution discussions involving the entire action took place between counsel. Ultimately, the motion was never argued although research had to be undertaken with respect to it, a factum prepared, and a book of authorities prepared. It appears that much of this work was done by a junior counsel in Mr. Gionet’s office, which is not surprising given the nature of the motion and the work required to be done. Having said this, I am cognizant of the fact that it was Mr. Gionet who travelled to Sault Ste. Marie expecting to argue the motion on September 20, 2019.
[9] In attempting to arrive at a fair and reasonable amount for costs, I have considered the factors set out in the Rules of Civil Procedure; the hourly rates and times as set out in the defendants’ costs outline; the nature of the motion brought and the principle of proportionality. In considering these factors, I am of the view that the appropriate amount of costs to be awarded to the defendants with respect to the motion withdrawn by the plaintiffs is $7,500.00, inclusive of HST and disbursements.
[10] Much of what was argued by the plaintiffs in their written submission on costs has a bearing on the payment of the costs ordered. It is unlikely that the plaintiffs will not recover any amount from the defendants given the pleadings, as I read them. This case appears to involve an accounting more than anything of monies owing by the defendants to the plaintiff. Given all of this, the costs that I have ordered will not be payable by the plaintiffs to the defendants until this action is completed and may be deducted from any amounts that are found to be owing by the defendants to the plaintiffs at the conclusion of this matter.
Gareau J.
Released: November 29, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RICHARD GIONETTE and ROBIN GIONETTE
- And –
CYNTHIA VANIER and PIERRE VANIER
REASONS on costs
Gareau J.
Released: November 29, 2019