Bracebridge Court File No.: CV-06-154

Date: 2020-08-26

Ontario Superior Court of Justice

Between:

Lise Gagne Plaintiff

– and –

Timothy Murray and Michael Murray Defendants

Counsel:

Sabrina Lucenti, for the Plaintiff

Carole Redmond, for the Defendants

Heard: In Writing

Costs Endorsement

Casullo, J.

[1] The Responding Party, Timothy Murray (“Murray”) successfully defended the Moving Party’s motion, which was brought in writing. Murray submits the motion was without merit, and that the Moving Party lacked standing to bring the motion.

[2] Murray seeks his costs on a full indemnity basis, in the all-inclusive sum of $13,912.56. In the alternative, Murray seeks costs on a substantial indemnity basis of $13,564.75, plus interest. In the further alternative, Murray seeks costs on a partial indemnity basis calculated at 65% up to the date of the offer to settle, and full or substantial costs from the date the offer was made, plus interest.

[3] The Moving Party submits that Murray has shown a complete disregard for the Rules of Civil Procedure and Court Orders since the commencement of this action and, accordingly, nominal costs should be awarded in the amount of $3,500. The Moving Party further submits that there should be no award for disbursements, given the lack of detail provided by Murray for the $406.80 claimed.

[4] The Moving Party’s Bill of Costs on a full indemnity basis is $8,659.75.

[5] Rule 57.01 of the Rules of Civil Procedure identifies the factors a court may consider when exercising its discretion to award costs, including, inter alia, the principle of indemnity, the amount of costs that an unsuccessful party could reasonably expect to pay, the amount claimed, the complexity of the issues, and the conduct of any party that tended to shorten or lengthen the proceeding.

[6] The importance of defending the motion cannot be understated. Had Murray been unsuccessful, he would have faced a writ of seizure and sale approaching $40,000, plus interest, which began accruing in 2007.

[7] While the factors set out in r. 57.01 provide guidance when a court is assessing and fixing costs, as Boswell J. held in Nesbitt v. Jeffery, 2018 ONSC 7285, at para. 15:

Regardless of the particular factors considered relevant by the court on any given assessment, it is now well-settled that the overarching principles to be observed in the exercise of the court’s discretion to fix costs are fairness, proportionality and reasonableness: see Beaver v. Hill, 2018 ONCA 840; Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.); and Moon v. Sher (2004), 2004 CanLII 39005 (ON CA), 246 D.L.R. (4th) 440 (C.A.).

[8] The Court should also look to fix costs that are fair and reasonable having regard to the expectation of the parties: Boucher, supra.

[9] There is no basis to award costs on a full indemnity basis. I am not prepared to find that the motion was brought without merit; neither am I prepared to find that Murray acted inappropriately.

[10] Murray did not serve a valid r. 49 offer. While there was a verbal discussion aimed at resolution, no offer in writing was forthcoming. Further, the verbal offer was not capable of acceptance (it was time-limited), and nothing was served on the Moving Party. Accordingly, the costs consequences provided for in the Rules are inoperative.

[11] The Moving Party should have anticipated this motion would be ardently contested, given what was at stake to Murray. Having regard to the overarching principles of proportionality, fairness and reasonableness, I award Murray partial indemnity costs of $10,500 inclusive of disbursements.

CASULLO J.

Date: August 26, 2020