Court File and Parties

COURT FILE NO.: CV-18-851 DATE: 20210212 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: FRANK NUTZENBERGER AND KIM NUTZENBERGER Plaintiffs

AND:

FESIH ZEKI MERT Defendant

BEFORE: Ricchetti, RSJ.

COUNSEL: J. MacDonald for the Plaintiffs A. Lokshin for the Defendant

HEARD: December 14, 2020

COSTS ENDORSEMENT

[1] On January 5, 2021, this court granted judgment in favour of the Plaintiffs. Costs were reserved.

[2] Written cost submissions have been received.

[3] The Plaintiffs seek partial indemnity costs of the motion and the action in the amount of $35,636.25 plus HST for fees and $3,095.03 for disbursements for a total of $42,696.31.

[4] The Defendant submits that the amount of costs to the Plaintiffs should be no more than $24,467.76 all inclusive.

[5] The offers exchanged between the parties do not engage the cost consequences under the Rules. I do note that the Plaintiffs’ offer was not much more than the judgment awarded by this court. The Defendant’s offers were not even close to the amount of the court’s awarded judgment.

[6] Pleadings, documentary and examinations for discovery had been completed, undertakings were completed, a pre-trial attendance and the action was set down for trial. Then the Summary Judgment motion was heard.

[7] At the time of the summary judgment motions, there remained outstanding undertakings from the Defendants which were never answered. While these outstanding undertakings have had no bearing on the court’s ultimate decision, it does, to some extent, explain why the Summary Judgment Motion was brought so late, after the matter had been set down for trial.

[8] Counsel on both sides spent considerable hours in this matter. The Defendant’s counsel’s Bill of Costs, filed just after the hearing, shows that the Defendant’s counsel spent 87.3 hours on this matter to the end of the Summary Judgment Motion. The amount claimed by the Defendant was just under $22,000, all-inclusive, on a partial indemnity basis.

[9] The Plaintiffs’ Bill of Costs shows considerably more hours, predominantly because it appears there is duplication arising from a change in firms by the Plaintiffs and no real explanation why Plaintiffs’ counsel had to obtain an outside law firm’s (Weir Fould’s) opinion on the matter. In my view, these two areas are not fees that the losing party would reasonably be expected to have to pay if they lost the motion. Accordingly, I find that the fees associated with these two areas are not recoverable as reasonable costs of the action.

[10] I find none of the other Defendant’s submissions regarding the experience of Mr. MacDonald or the fact he was at a large firm which might permit him to use more “clerical” work at a lower hourly rate, or deleting the cost to set the action down for trial or other issues raised.

[11] I specifically reject the submission that the costs should be reduced by 10 per cent because the amount recovered is just under the amount claimed in the Statement of Claim. This is a particularly specious argument when you compare this to the Defendant’s offers and the Defendant’s ability to put in an offer for the amount the Defendant felt was appropriate – 10 per cent less or otherwise.

[12] This was a factually and legally complex and highly important matter to both sides. This is evident from the time and effort both sides put into the action and the summary judgment motion.

[13] Having looked at the Bills of Costs, I am satisfied that 85 hours is a reasonable amount of time to have been spent on this action and the summary judgment motion.

[14] Accordingly, I find that, in these circumstances, I calculate the reasonable legal fees to be: the amount of approximately 85 hours x $297.50/hour = $25,287.50.

[15] I find no error or area of unreasonableness in the disbursements of $3,095.03.

[16] Accordingly, costs are awarded to the Plaintiffs in the amount of $28,382.53 payable forthwith.

Ricchetti, RSJ Date: February 12, 2021