SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Gaspare Caruso, Plaintiff
AND:
Robert Bortolon, Dean Bortolon, John Hanna Nissan and Martin Citron, Defendants
BEFORE: Justice G.D. Lemon
COUNSEL: Gaspare Caruso, in Person
Sean Dewart, Counsel for Gurmeet Singh Salooja,
Adam Jarvis, Counsel for the Defendants
HEARD: In Writing
Costs ENDORSEMENT
The Issues
1On December 17, 2020, I granted the defendants’ motion for summary judgment and dismissed Mr. Caruso’s action.
2The defendants seek costs in the amount of $26,814.39 against both Mr. Caruso and his lawyer, Mr. Salooja, to be granted on a joint and several basis. Mr. Caruso seeks his own costs in an unspecified amount. Mr. Salooja denies that he should be personally liable for the costs order.
Legal Authorities
3Rule 57.01 of our Rules of Civil Procedure sets out the factors that the court may consider when determining costs. The relevant factors that I should consider here are:
(a) the result in the proceeding,
(b) the experience of the lawyer for the party entitled to the costs as well as the rates charged, and the hours spent by that lawyer;
(c) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
(d) the amount claimed and the amount recovered in the proceeding;
(e) the complexity of the proceeding;
(f) the importance of the issues;
(g) the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding.
4Modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants: Fong v. Chan 1999 2052 (ON C.A.), (1999), 46 O.R. (3d) 330, at para. 22.
5Costs awards, at the end of the day, should reflect “what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties”: see Boucher v. Public Accountants Council for the Province of Ontario 2004 14579 (ON C.A.), (2004), 71 O.R. (3d) 291, at para. 24.
Analysis
6The defendants were entirely successful. They are presumed to be entitled to their costs.
7Mr. Caruso’s claim was found to be statute barred as he failed to bring the claim within two years. I found Mr. Caruso’s position and evidence to be without merit. Whatever may have happened in January of 2017, the claim was brought too late. In his costs submissions, Mr. Caruso attempts to repeat an argument made by his counsel at the motion; whether the claim had merit or not, it has been brought too late. There is no reason to grant costs to Mr. Caruso.
8There were no offers to settle; however, that is not unreasonable in this “winner take all” motion.
9The materials were extensive. Cross-examinations were held. Mr. Caruso brought an unsuccessful motion to discover other parties. The defendants’ counsel was required to expend a lot of time and energy to end this obviously stale claim.
10There were contested adjournments requested by Mr. Caruso. They were successful but added to the cost of his unsuccessful position.
11Costs of those various steps were left to me as the motions judge.
12I am satisfied that the defence to the motion was without merit and was mounted by Mr. Caruso only for delay purposes. His conduct throughout supports an order for substantial indemnity costs.
13I have reviewed the Bill of Costs. I find the time and rates to be reasonable.
14In all the circumstances, the amount requested by the defendants is fair and reasonable.
15The request for costs against Mr. Salooja is understandable but I am not satisfied that these circumstances rise to the clear case necessary to make such an order.
16The defendants apparently seek costs back to the commencement of the motion. Mr. Salooja did not come on record (September 2020) until after the motion was first set to be argued (August 2020). The bill of costs does not set out when various steps were undertaken. Mr. Salooja cannot be faulted for the actions of his preceding counsel.
17I cannot find that Mr. Salooja put forward Mr. Caruso’s case with an intention on Mr. Salooja’s part to delay. In this case, Mr. Salooja has not been a very good lawyer. He has made improper and unfounded allegations against counsel for the defendants. Based on his materials and the conduct of his argument, it is more likely that Mr. Salooja is simply a stooge for Mr. Caruso’s plans and intent. I must apply “extreme caution” before ordering costs against Mr. Salooja personally. I cannot find bad faith on the part of Mr. Salooja. I cannot find that Mr. Salooja’s behaviour was deliberate, dishonest and malicious even if that was certainly Mr. Caruso’s intent.
18Counsel for the defendants quite properly set out the apparent weaknesses in Mr. Caruso’s case when Mr. Salooja came on record. That could well have been persuasive to Mr. Salooja and should have been persuasive to Mr. Caruso. But that letter cannot be taken as confirmation in hindsight that Mr. Salooja should have withdrawn from the case. I do not, and cannot, know of the solicitor-client discussions which may have followed from that letter.
19In any event, given Mr. Caruso’s conduct, it would likely have been even more expensive for the defendants to be without Mr. Salooja and to deal with Mr. Caruso as an unrepresented litigant.
20Mr. Salooja failed to respond to the Request to Admit. If he was intending to delay the matter or increase costs, he could have brought a motion to extend the time to respond.
21To be clear, while Mr. Salooja may have been incompetent, those failures caused no harm to Mr. Caruso. Mr. Caruso lost this claim based on his own evidence and the record that Mr. Salooja took over when he was first retained by Mr. Caruso.
Results
22Taking all of those factors into consideration, I find that a fair and reasonable amount for costs is $26,814.39. Mr. Caruso shall pay those costs to the defendants’ counsel in trust for the defendants within 30 days.
“Justice Lemon”
Justice G.D. Lemon
Date: January 14, 2021
