COURT FILE NO.: CV-17-132801 (Newmarket)
MOTION HEARD: 2018 12 17
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 2579394 Ontario Inc. v. Sandra Mammone
BEFORE: MASTER R. A. MUIR
COUNSEL: Mauro Marchioni for the plaintiff W. Brad Hanna and Lauren Ray for the defendant
SUPPLEMENTARY REASONS FOR DECISION - COSTS
[1] These supplementary reasons for decision are in relation to a motion brought by the defendant seeking an order dismissing the plaintiff’s action on the basis of the plaintiff’s failure to pay a costs order made by me on April 17, 2018.
[2] The defendant also requested an order pursuant to Rule 56.01 of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”) requiring the plaintiff to post security for costs.
[3] The earlier costs order was satisfied after this motion was brought. The security for costs portion of the defendant’s motion was argued before me on December 17, 2018.
[4] I released my reasons for decision on December 20, 2018. I made an order requiring the plaintiff to post security for costs in the amount of $90,000.00. I also asked the parties to provide written costs submissions. I have now received and considered those submissions.
[5] The defendant takes the position that she was the successful party on the motion. The earlier costs order was only paid after the motion was brought. An order for security for costs was granted. The defendant seeks partial indemnity costs of $41,616.76 inclusive of HST and disbursements.
[6] The plaintiff takes the position that the costs requested are excessive for a motion of this nature. The plaintiff also submits that the defendant was not entirely successful. The defendant’s supporting affidavit sought security for costs in the approximate amount of $172,000.00. Only $90,000.00 was ultimately ordered to be posted. The plaintiff suggests costs in the cause in the amount of $25,000.00.
[7] The factors and principles I have considered and applied in determining the costs of this motion are set out in my previous decision in 2579394 Ontario Inc. v. Mammone, 2018 ONSC 2465 at paragraphs 5 and 6 as follows:
The court’s general authority to award costs as between parties to litigation is found in section 131(1) of the CJA, which provides that costs are in the discretion of the court. Rule 57.01(1) allows the court to consider the result achieved in the proceeding or motion and any offer to settle. This Rule also includes a non-exhaustive list of factors the court may consider when awarding costs. Rule 1.04(1.1) is also applicable. It requires the court in applying the Rules to make orders that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding.
When dealing with costs, the overall objective for the court is to fix an amount that is fair and reasonable for the unsuccessful party who generally must pay the costs of the successful party. See Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (ON CA), [2002] OJ No. 4495 (CA) at paragraph 4 and Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] OJ No. 2634 (CA) at paragraph 26. In Davies v. Clarington (Municipality), 2009 ONCA 722 the Court of Appeal stated as follows at paragraph 52:
Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.
[8] The defendant was the successful party and is entitled to costs. This motion was necessary. My costs order was not paid in a timely manner. The defendant obtained an order for security for costs.
[9] However, I agree with the plaintiff that the costs requested are excessive for this motion. The defendant docketed 45 hours for the cross-examination and 60 hours for preparing a factum. I appreciate that it was necessary for the defendant to address the merits on a security for costs motion but I note that much of the examination of the merits of this action was previously carried out for the earlier motion brought by the plaintiff seeking a certificate of pending litigation (“CPL”). In my view, the CPL motion was much more complex and time consuming than this motion and I awarded $50,000.00 for that motion. The amount requested by the defendant also seems excessive when compared to the $90,000.00 ordered as security for the costs of the action as a whole. In addition, I note that the plaintiff’s costs outline for this motion identifies costs of approximately $20,000.00.
[10] It is also my view that there should be a reduction to the costs requested given the defendant’s lack of complete success. The defendant received an order for security for costs for only a portion of the amount requested.
[11] For these reasons, I have concluded that the quantum of costs suggested by the plaintiff is fair and reasonable for a motion of this nature.
[12] I see no reason to order that those costs be paid in the cause. As a general rule, the costs of an interlocutory motion should be awarded to the successful party and fixed and payable within 30 days. The defendant was the successful party. As well, as I noted in my December 20, 2018 reasons, given Mr. Cirillo’s stated evidence as to his net worth, an order for costs payable in 30 days will not result in an injustice by preventing a bona fide claim from proceeding.
[13] I therefore order that the plaintiff pay the defendant’s partial indemnity costs of this motion fixed in the amount of $25,000.00 inclusive of HST and disbursements. These costs shall be paid by March 6, 2019.
Master R. A. Muir
DATE: 2019 02 04