Court File and Parties

Oshawa Court File No.: 1894/17SR Date: 2020-06-30 Superior Court of Justice - Ontario

Re: Deborah Margaret Sora and David Kei Sora, Plaintiffs And: Emerson Electrical Co., Emerson Electrical Canada Limited, Emerson Climate Technologies, Enbridge Gas Distribution Inc., Enbridge Inc., Goodman Manufacturing Company, Goodman Manufacturing Company L.P., Goodman Manufacturing Company L.P., A Member Of Daikin Group, Goodman Manufacturing Company Of Canada, Limited, The Daikin Group, Daikin Applied Canada Inc., Daikin Applied Americas Inc., Daikin Industries Ltd., John Doe Manufacturer, John Doe Retailer, John Doe Component Manufacturer, and John Doe Installer, Liam Patrick Hurley and Hurley Mechanical, Defendants

Before: Corkery J.

Counsel: Payam Ezzatian, for the Plaintiffs Daniel Himelfarb, for the Defendants, Liam Patrick Hurley and Hurley Mechanical

Heard: October 10, 2019

Costs Endorsement

J.C. Corkery J.

[1] The plaintiffs succeeded on their motion seeking leave to amend the Statement of Claim to replace "John Doe Retailer" and "John Doe Installer" with the names of the Hurley defendants. I invited and received written submissions as to costs.

[2] The plaintiffs seek their costs on a partial-indemnity basis of $10,457.32 including disbursements, payable within 60 days.

[3] The defendants’ position is that the costs associated with this motion should be dealt with either at the conclusion of trial or the resolution of the action. Alternatively, if costs are determined to be payable forthwith, the defendants submit that the costs claimed by the plaintiffs are excessive, unreasonable, disproportionate, and not what the Hurley Defendants would have expected to have to pay.

[4] Costs are discretionary: see s. 131 Courts of Justice Act, R.S.O. 1990, c. C.43. Subrule 57.01 (1) of the Rules of Civil Procedure, R.R.O. 1990, Reg 194, identifies factors that the court may consider. The objective is to determine an amount that is fair and reasonable, rather than fixing an amount based upon the actual costs incurred by the successful litigant: see Boucher et al. v. Public Accountants Council for the Province of Ontario et al. (2004), 71 O.R. (3d) 291 at para. 26.

[5] Generally in Ontario, costs follow the event: see St. Jean v. Cheung, 2009 ONCA 9 at para. 4. Absent exceptional circumstances, the successful party is entitled to its costs on a partial indemnity basis forthwith.

[6] In this case, costs in the cause would be inappropriate. There is no reason costs should not follow the event. Giving due consideration to the plaintiffs’ bill of costs and the submissions of the parties, the fair and reasonable amount of costs for this motion on a partial indemnity scale is $9,000, inclusive of H.S.T., payable within 60 days.

J.C. Corkery J. Released: June 30, 2020