COURT FILE NO.: CV-19-65
DATE: 20210412
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DARLENE PETITPAS, Plaintiff
-and-
THE CORPORATION OF THE CITY OF KINGSTON, Defendant
BEFORE: Mr. Justice Pierre E. Roger
COUNSEL: L. Vadala, Counsel for the Plaintiff/Responding Party
K. Cooke, Counsel for the Defendant/Moving Party
HEARD: In writing
ENDORSEMENT on costs
[1] I dismissed the motion for summary judgment brought by the Defendant, the Corporation of the City of Kingston: Petitpas v. Kingston (City), 2021 ONSC 1521.
[2] The issue of costs is left to be decided as the parties have been unable to agree on the amount of costs. It is undisputed that the costs of this motion for summary judgment are payable by the defendant to the plaintiff; the only issue in dispute is the appropriate amount of costs.
[3] The defendant argues that the plaintiff’s costs are slightly excessive and that a more reasonable amount of costs for the motion for summary judgment would be $7,500.
[4] The costs of and incidental to a proceeding or of a step in a proceeding are at the discretion of the court: s. 131 of the Courts of Justice Act. Rule 57 of the Rules of Civil Procedure provides for certain factors that the court may consider when determining costs.
[5] Here, the plaintiff was the successful party on the motion, and I have not been made aware of any circumstances why the plaintiff should not be entitled to the reasonable and fair costs of that motion. Indeed, the plaintiff’s entitlement to costs is not disputed.
[6] The defendant brought to my attention an offer, but that offer is of no consequence because the plaintiff was the successful party on the motion.
[7] This was an important motion for the parties, of average complexity.
[8] There is no question that bringing an unsuccessful motion for summary judgment causes some delay in the conduct of a legal action. However, although the motion was unsuccessful, it was not an improper or a vexatious step, and it might ultimately result in an effective path forward considering that someone is now case managing this action.
[9] When fixing costs, the overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay, while also considering the other objectives of a costs award, including that of indemnity and that of discouraging unnecessary motions.
[10] The parties’ costs outlines seek comparable amounts for fees. The plaintiff’s total fees are $18,766 (partial indemnity fees are $11,259), while the defendant’s total fees are $19,391 (partial indemnity fees are $11,634).
[11] The defendant argues that their fees are slightly higher than what they would have been had it not been necessary to reassign the defendant’s file to a new lawyer and seek a corresponding reduction in the plaintiff’s fees. However, when I review the defendant’s costs outline, I find that any such duplication is minimal.
[12] The defendant also argues that the plaintiff’s factum was longer than it should have been. That is correct but the plaintiff’s factum also contributed to the plaintiff successfully responding to the defendant’s motion for summary judgment.
[13] In addition, when I consider the costs outlines of both parties, I find the amounts sought by both parties to be quite reasonable, and within the reasonable expectation of a losing party. Indeed, there were cross-examinations and both parties filed helpful materials on this motion.
[14] As a result, considering all the circumstances of this matter and the arguments raised by both parties, I find that a reasonable and fair amount for the costs of this motion is $13,390. That amount is inclusive of fees, disbursements, and applicable taxes. It shall be paid by the defendant to the plaintiff within the next 30 days.
Mr. Justice Pierre E. Roger
Date: April 12, 2021
COURT FILE NO.: CV-19-65
DATE: 20210412
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: DARLENE PETITPAS, Plaintiff/Respondent
-and-
THE CORPORATION OF THE CITY OF KINGSTON, Defendant/Applicant
BEFORE: Mr. Justice Pierre E. Roger
ENDORSEMENT on Costs
Roger J.
Released: April 12, 2021