Court File and Parties
Court File No.: CV-20-455 Date: 2020 12 17 Ontario Superior Court of Justice
Between:
DAVID BACCHUS, Plaintiff (Norman Groot for the Plaintiff)
- and -
SARA LORRAINE MUNN, JOHN DOE, JANE DOE and DOE CORPORATIONS, Defendants (Howard Cohen, Carolyn Gandy and Sabrina Waraich for the Defendants)
Heard: In Writing
Reasons for Judgment
LEMAY J
[1] I have been case-managing this matter since the summer of this year. As part of the case management process, I issued a decision on November 5th, 2020 (Bacchus v. Munn, 2020 ONSC 6650) in which I considered the question of whether certain portions of the Defendant’s pleadings should be struck out under Rule 21 or Rule 25 of the Rules of Civil Procedure. I dismissed the Plaintiff’s motion to strike. I must now fix the costs for this motion.
Positions of the Parties
[2] The Defendant is seeking full indemnity costs in the sum of $12,584.24 inclusive of HST and disbursements. The Defendant seeks these costs on the grounds that:
a) The Defendant was reasonable in her positions in this case and tried to find a compromise to prevent the motion from being heard. b) The Defendant was successful on the motion.
[3] The Defendant’s concerns about the Plaintiff’s conduct do not justify an award of full indemnity costs for this motion. The Court of Appeal has made it clear that, absent a Rule 49 offer to settle, enhanced costs are only awarded for conduct that is worthy of sanction. Davies v. Clarington 2009 ONCA 722 (2009) 100 O.R. (3d) 66. No such conduct exists in this case. As a result, I will only consider the costs in this matter at a maximum on a partial indemnity basis.
[4] The Plaintiff argues that the appropriate order is for him to pay the Defendant costs in the sum of $3,606.50 inclusive of HST and disbursements. In support of this position, the Plaintiff points out that he originally received a bill of costs from the Defendant that had this amount as the partial indemnity costs of this motion. It was only when the costs submissions were made to the Court that the Defendant doubled the partial indemnity costs to over $6,000.00.
Analysis and Decision
[5] The factors to be considered in setting the costs for a motion, or other step in a proceeding, are set out in Rule 57.01 of the Rules of Civil Procedure. The most relevant ones for this motion are:
a) The complexity of the motion. b) The reasonable expectation of the losing party.
[6] There is no dispute between the parties that the Defendant was the successful party on this motion and is, therefore entitled to some costs.
[7] However, counsel for the Plaintiff is quite right to point out that, in my reasons, I observed (at paragraph 69) that I would not have expected the costs of this motion to be particularly high, given that it focused on discrete issues and had been argued in writing based mostly on material that had already been prepared.
[8] It is clear that this motion was simple and involved a discrete series of issues. As a result, this is a factor that supports the payment of a lower order of costs.
[9] This brings me to the reasonable expectation of the losing party. I do not have to resolve the question of whether the change to the Defendant’s bill of costs was reasonable or justified. I am of the view that the costs claimed in the new bill are not justified for two reasons:
a) There appears to be some duplication in the work being performed by Ms. Gandy and Ms. Waraich. While this duplication may be necessary because of the way that the Defendant is managing this litigation, it is not duplication that the Plaintiff should pay for. b) As I have noted above, this was a relatively straightforward motion. While I do not doubt that the Defendant’s counsel has spent the time claimed on this matter, I am not prepared to compensate them for all of it.
[10] In the result, the Plaintiff is prepared to pay $3,606.50 inclusive of HST and disbursements as the costs for this motion. I am of the view that this is a reasonable amount of costs for this motion, and I order the Plaintiff to pay this amount. These costs may be set off against any costs that the Defendant currently owes the Plaintiff. If the Defendant has satisfied all outstanding costs awards against her, then the costs are payable within thirty (30) days of today’s date.