Court File and Parties

Court File No.: CV-18-00602244-0000 Date: 2021-01-13 Superior Court of Justice – Ontario

Re: Alberino Albert Salvatore, 2232465 Ontario Limited and Sprint Mechanical Inc., Plaintiffs – and – David Tommasini, Anna Rucchetto, Four Seasons Aviation Ltd., and Sky Ship Capital Corp., Defendants

Before: E.M. Morgan J.

Counsel: Alan G. McConnell, for the Plaintiffs S. Dale Denis, for the Defendants

Heard: Costs submissions in writing

Amended Costs Endorsement

[1] On December 9, 2020, I issued summary judgment in favour of the Defendants and dismissing the action in its entirety. As the successful party, the Defendants are entitled to costs.

[2] Defendants’ counsel has made costs submissions and provided a Bill of Costs seeking an elevated level of costs. He seeks the all-inclusive amount of $449,416.59 on a full indemnity basis, or $370,926.79 on a substantial indemnity basis. His Bill of Costs also indicates that he incurred $292,436.99 on a partial indemnity basis.

[3] The Defendants base their request for elevated costs on Rule 20.06(a) of the Rules of Civil Procedure. Their counsel submits that the Plaintiffs acted unreasonably on two accounts: 1) there was no merit to the claim brought by the Plaintiffs; and 2) the Plaintiffs brought a summary judgment against the Defendants when they were not in a position to do so. He also argues that the Defendants deserve full indemnity because the Plaintiffs presented no evidence that they suffered the damages claimed in their pleading, in particular as against one of the Defendants who counsel says was sued in bad faith.

[4] Plaintiffs’ counsel responds that none of the Defendants’ arguments establishe grounds for an elevated level of costs. He relies on Wallerstein v. 2161375 Ontario Inc., 2013 ONSC 1580, at para 8, where D.M. Brown J. (as he then was) stated that “elevated costs can only be awarded where a party has engaged in “reprehensible litigation conduct”. Counsel for the Plaintiffs submits that there is nothing about the conduct of the present litigation that was reprehensible in the way that term is used by the courts.

[5] I agree with the Plaintiffs on this point. Elevated costs are a tool that the courts use to signal their disapproval of the way in which the litigation itself has been conducted. They are not used to signal a weak case by the losing side, which is what the Defendants’ argument amounts to.

[6] I was not convinced by the Plaintiffs’ evidence and arguments in the summary judgement motion, and was convinced by the Defendants’ evidence and arguments. On the merits, the Plaintiffs were held to be wrong about their interpretation of the relevant documents and events, and they were therefore found not to be entitled to what they claimed. That is why summary judgment was granted to the Defendants.

[7] But counsel for the Plaintiffs did a perfectly acceptable job in conducting the litigation, and there was nothing “reprehensible” about the Plaintiffs having pursued their claim. It is not for a court in a costs ruling to in effect punish or scold a party for having pursued a claim that asserted what they viewed as their rights, even if they ultimately lost their case. That is what litigation is all about.

[8] Plaintiffs’ counsel concedes that the Defendants should be awarded some costs. He submits, however, that the award be in the range of $83,857.42, which is more in line with what the Plaintiffs themselves incurred on a partial indemnity basis. Plaintiffs contend that the Defendants spent an excessive number of hours on this matter and, essentially, overworked the file.

[9] Here I do not agree with Plaintiffs’ counsel. Defendants’ counsel invested the time and effort it took to be successful in the summary judgment motion. This was a relatively complex business arrangement that entailed a multi-document question of contract interpretation. Defendants’ counsel’s investment of time in preparing the record and carrying the motion paid the dividends that his clients sought. I am not inclined to second guess whether he could have done just as good a job putting in the lesser number of hours that Plaintiffs’ counsel put in.

[10] I note that after both sides had provided my assistant with their written costs submissions, Defendants’ counsel wrote to me stating that in his view Plaintiffs’ counsel had misread a portion of my reasons for judgment. He explained that Plaintiffs’ counsel had expressed the view – wrongly, in Defendants’ counsel’s view – that I found two of the four documents in issue in this case to be enforceable even though I had found the package of four documents overall not to be enforceable. Defendants’ counsel went on to explain that this issue is a ground of appeal that was being pursued by the Plaintiffs, and in the Defendants’ view should not have been stated this way in the Plaintiffs’ costs submissions.

[11] Plaintiffs’ counsel responded to this letter with a letter of his own to me. In Plaintiffs’ counsel’s view there was nothing incorrect about his reading of my reasons for judgment. Perhaps more importantly, he stated that Defendants’ counsel should not have alerted me to the fact that the case is the subject of a pending appeal, and he asked me to disabuse myself of that information.

[12] With respect, I do not regard any of this ex post argument as relevant to my analysis of costs. Whether one side or the other has interpreted my reasons for judgment correctly is not for me to opine on here. I will leave that question to higher authorities.

[13] Moreover, the fact that one side may be appealing the first instance judgment is an accepted and entirely legitimate part of the litigation process and should take no trial or motions judge by surprise. I have no problem disabusing myself of any knowledge of an appeal having been filed; it is in any case not a matter to which I would have turned my mind in weighing counsels’ respective costs submissions.

[14] The Defendants are entitled to costs of the motion on a partial indemnity scale. I accept Defendants’ counsel’s figures in that regard, and will exercise my discretion under section 131 of the Courts of Justice Act to round off the bottom line for convenience.

[15] The Plaintiffs shall pay the Defendants $290,000, inclusive of all fees, disbursements, and HST.

Morgan J.

Date: January 13, 2021