Court File and Parties
COURT FILE NO.: CV-20-83948 DATE: 2021/09/15
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Rowan Thomson and Kevin McStravick, Plaintiffs (Moving Parties) AND Jerry Benjamin and Ryan Benjamin, Defendants (Responding Parties)
BEFORE: Justice R. Ryan Bell
COUNSEL: Edward C. Conway, for the Plaintiffs Gordon S. Campbell, for the Defendants
HEARD: In writing
COSTS ENDORSEMENT
[1] On August 11, 2021, I dismissed the plaintiffs’ motion for a mandatory interlocutory injunction seeking the relocation of a residential heat pump. The parties have been unable to agree on costs of the motion. They have provided me with their costs outlines and submissions. This endorsement addresses costs of the motion, including costs thrown away as a result of the adjournment on May 20, 2021.
[2] As the successful parties on the motion, the defendants are entitled to their costs. The plaintiffs do not argue otherwise. The defendants submit that the plaintiffs’ conduct warrants a costs award “somewhere between Partial Indemnity [$17,773.21] and Substantial Indemnity [$23,700.62].” The plaintiffs do not take issue with the time spent or rates charged by defendants’ counsel. The plaintiffs have provided a costs outline that shows their own costs to be $31,640.00, and $20,882.00 on a partial indemnity basis.
[3] The defendants have not provided me with any authority to justify a costs award on a scale “somewhere between” partial indemnity and substantial indemnity being made. In my view, the plaintiffs’ conduct identified by the defendants – the last minute adjournment of the hearing on May 20, 2021 and the lengthy cross-examinations conducted by the plaintiffs – is not behaviour worthy of the court’s sanction. Elevated costs are not warranted in this case.
[4] However, I have considered the plaintiffs’ conduct in exercising my discretion to award costs: rr. 57.01(e) and 57.01(f) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The defendants maintain that the plaintiffs’ cross-examinations were unduly lengthy and served to increase the defendants’ costs. The plaintiffs also lengthened the duration of the proceeding by requesting an adjournment on May 20, 2021 to allow them time to file additional materials. In his endorsement, Riopelle J. expressly confirmed that the issue of costs thrown away was to be reserved to the judge presiding at the hearing of the motion.
[5] The costs fixed by the court “should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant”: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.), at para. 24. Given the magnitude of their own fees and disbursements, the plaintiffs cannot be taken by surprise with the quantum of costs claimed by the defendants.
[6] Having regard to all of the above, I find that $17,773.21, all inclusive, is a fair and reasonable amount for the plaintiffs to pay the defendants in respect of the motion. This amount is to be paid within 30 days.
Ryan Bell J.
Justice R. Ryan Bell
Date: September 15, 2021
COURT FILE NO.: CV-20-83948 DATE: 2021/09/15
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Rowan Thomson and Kevin McStravick, Plaintiffs (Moving Parties) AND Jerry Benjamin and Ryan Benjamin, Defendants (Responding Parties)
BEFORE: Justice R. Ryan Bell
COUNSEL: Edward C. Conway, for the Plaintiffs Gordon S. Campbell, for the Defendants
COSTS ENDORSEMENT
Justice R. Ryan Bell
Released: September 15, 2021