COURT FILE NO.: CV-13-485168
MOTION IN WRITING FILED: 20210517
REASONS RELEASED: 20210830
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
RICCARDO MOSCA
Plaintiff
- and-
IFTECH INVENTING FUTURE TECHNOLOGY INC., BRODIE STANFIELD and MICHAEL STANFIELD
Defendants
BEFORE: MASTER M.P. McGRAW
COUNSEL: P. Callahan E-mail: pcallahan@RCDLAW.COM -for the Defendants
R. Mosca E-mail: riccardomosca@sympatico.ca -Plaintiff, Self-Represented
REASONS RELEASED: August 30, 2021
Reasons For Endorsement
I. Introduction
[1] This is a motion in writing by the Defendants to fix the costs of this action which was dismissed by Order of the Registrar dated November 7, 2019 (the “Dismissal Order”). The Defendants seek costs of $42,740.56 on a substantial indemnity scale. Notwithstanding multiple indulgences, the Plaintiff did not retain new counsel or file responding materials.
II. The Law and Analysis
[2] The Plaintiff commenced this action by Statement of Claim issued on July 19, 2013 then delivered an Amended Statement of Claim on July 23, 2013. On August 23, 2013, the Defendants made a formal offer to settle (the “Offer”) this action for payment of $5,000 to the Plaintiff. The Offer was open for acceptance without costs until September 6, 2013 and with costs consequences under Rule 49.10(1) until after the commencement of trial. The Plaintiff did not accept the Offer. The Defendants delivered their Statement of Defence and Counterclaim on May 13, 2014. The Plaintiff defended the Counterclaim on July 3, 2014.
[3] Master Abrams granted a consent order on March 27, 2014 directing the Plaintiff to provide particulars and documents with costs to the Defendants. The Plaintiff’s motion on August 9, 2017 for a further and better affidavit of documents was dismissed by Master Abrams with costs subsequently granted to the Plaintiff which remain unpaid.
[4] The Plaintiff took no steps to have the Dismissal Order set aside. The Defendants brought this motion on May 16, 2020, amended their Notice of Motion on June 16, 2020 and this matter was assigned to me on June 18, 2020. Telephone case conferences were held on July 8, 2020; October 16, 2020 and February 17, 2021 to speak to the delivery of the Plaintiff’s responding materials. The Plaintiff was initially provided with 60 days to retain new counsel then, due to disruptions to his business related to the COVID-19 pandemic, until December 31, 2020 to deliver materials. Another extension was granted until May 17, 2021 peremptory on the Plaintiff. The Plaintiff did not deliver any materials.
[5] Subject to the provisions of an Act or the Rules, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid (s. 131(1), Courts of Justice Act (Ontario)). In exercising its discretion, in addition to the result and any offer to settle made in writing, the court may consider the factors set out in Rule 57.01(1).
[6] The overriding principles in determining costs are fairness and reasonableness (Boucher v. Public Accountants Council for the Province of Ontario, (2004) 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)). The general rule is that costs on a partial indemnity scale should follow the event except for very good reasons such as misconduct, miscarriage in procedure or oppressive or vexatious conduct (1318706 Ontario Ltd. v. Niagara (Regional Municipality) (2005), 2005 CanLII 16071 (ON CA), 75 O.R. (3d) 405 (C.A.)).
[7] The Defendants were completely successful and there is no reason to depart from the general rule that they are entitled to costs to reflect their success. The fact that the Plaintiff commenced the litigation and took numerous steps but ultimately did not pursue it also added unnecessary time and costs (Rules 57.01(1)(e)(f)(g)).
[8] I am satisfied that the Offer meets the requirements under Rule 49.10(1) and that the Defendants are entitled to costs on a partial substantial scale up to the date of the Offer and substantial indemnity costs after the date of the Offer. In determining quantum, I have also taken into consideration costs already awarded by Master Abrams on the two previous motions.
[9] In all of the circumstances, and having reviewed the Defendants’ Costs Outline, I am satisfied that it is fair and reasonable and within the reasonable expectations of the parties for the Plaintiff to pay costs to the Defendants fixed in the amount of $36,000 within 30 days.
Released: August 30, 2021
Master M.P. McGraw