COURT FILE NO.: CV-18-608857

DATE: 2021 10 04

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: GAETANO SARTA, Plaintiff

• and -

ALISA MAZO, MAZO CHOWBAY Barristers & Solicitors, and ALISA MAZO PROFESSIONAL CORPORATION, Defendants

BEFORE: Associate Justice Todd Robinson

COUNSEL: D. Wilson, for the plaintiff

J. Van Allen, for the defendants

HEARD: September 24, 2021 (by teleconference)

COSTS ENDORSEMENT

[1] On July 27, 2021, I heard the plaintiff’s motion to compel a further and better affidavit of documents from the defendants. For reasons released on August 20, 2021, I granted the motion, in part. The parties have been unable to agree on costs of the motion, so this case conference was scheduled to make costs submissions.

[2] Notwithstanding my direction for oral costs submissions, both sides nevertheless filed written submissions in advance of the hearing. It did expedite argument. However, to an extent, it also defeated my intent behind directing oral submissions in the first place, which was to avoid the parties incurring additional costs of preparing written materials beyond the costs outlines already filed.

[3] Both sides agree that the plaintiff is entitled to costs of the motion, but dispute the amount. The plaintiff seeks his partial indemnity costs of $4,575.87, inclusive of HST and disbursements, plus a further $500 for costs of these costs submissions. The defendants submit that the appropriate costs award is 50% of the partial indemnity costs claimed in the plaintiff’s costs outline.

[4] Section 131 of the Courts of Justice Act, RSO 1990, c. C.43 and Rule 57.01 of the Rules of Civil Procedure, RRO 1990, Reg 194 afford me with broad discretion to fashion a costs award that I deem fit and just in the circumstances of this motion. General costs principles are well settled. Costs are discretionary. Rule 57.01 sets out a non-exhaustive list of factors to be considered by the court in exercising that discretion, which are in addition to considering the result of the proceeding and any written offers to settle. Rule 1.04(1.1), which is also applicable, requires the court to make orders that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding.

[5] A costs award for this motion must reflect what I view as a fair and reasonable amount that should be paid by the defendants rather than any exact measure of the actual costs incurred by the plaintiff: Davies v. Clarington (Municipality), 2009 ONCA 722 at para. 52. My overall objective is to fix an amount that is fair and reasonable in this particular proceeding, having regard to the expectations of the parties concerning the quantum of costs: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 OR (3d) 291 (CA) at paras. 26 and 38.

[6] The plaintiff was successful, albeit not fully. In my view, the motion was necessary. Although the defendants argue (again) that the plaintiff could have adjourned the motion in its entirety pending examinations for discovery and thereafter renewed the motion as needed, I agreed with the plaintiff that he was entitled to proper documentary disclosure from the defendants before proceeding to examinations. I did not accept the defendants’ narrow view of relevance. In my view, the pleadings clearly supported relevance of documents for which relevance was staunchly denied by the defendants. My decision should hopefully assist the parties in avoiding at least some disputes during examinations. That also supports necessity of the motion.

[7] Proportionality is a consideration here. In this action, the plaintiff seeks $1 million in damages, restitution of legal fees paid, and $150,000 in punitive damages. The plaintiff’s total costs claim for this opposed motion is approximately $5,000 on a partial indemnity basis. The discrepancy in the parties’ positions on costs is less than $2,500. Because they were unable to resolve that modest dispute in the overall litigation themselves, these costs submissions became necessary at additional expense to both parties.

[8] The defendants’ costs outline indicates that they would have claimed partial indemnity costs of $2,083.58, including HST and disbursements. The amount, however, is not a useful comparator in assessing reasonable expectations. The total hours spent by defendants’ counsel are essentially the same as those spent by plaintiff’s counsel, yet the defendants delivered no responding materials other than a brief factum citing only one case. That actually supports reasonableness of the hours spent by plaintiff’s counsel.

[9] The variance between costs outlines ultimately lies in the hourly rates. I have considered the rates as claimed and as actually charged in assessing reasonable expectations of the parties. Senior counsel on both sides have essentially the same experience by year of call, but have highly discrepant hourly rates. Based on the costs outlines, the actual rate charged by Mr. Wilson for the plaintiff is more than double the actual rate charged by Mr. Scott for the defendant. Notably, though, despite being called to the bar more than 30 years after Mr. Scott, Ms. Van Allen’s actual rate is only $25 per hour less. In my view, Mr. Scott’s rate is much lower than would be reasonably expected for a 1971 call.

[10] Divided success is also a factor, but I reject the defendants’ argument in their written submissions that the plaintiff should be awarded only 50% of his costs since he was only 50% successful. I accept the plaintiff’s submission that, despite being partially unsuccessful, his costs would have been essentially unchanged if the unsuccessful relief had not been included or pursued. I also accept that those portions of the plaintiff’s materials dealing with unsuccessful relief were not substantial. By the same token, though, I found that the plaintiff had failed to meet his onus in seeking production of correspondence that he had produced and internal documents assumed to have been created by the defendants precisely because the evidence before me was lacking.

[11] Put more simply, while evidence on the unsuccessful relief was only a limited portion of the plaintiff’s materials, the limited evidence was also significant in why the plaintiff was unsuccessful in obtaining all the relief he sought. It seems counterintuitive to ignore evidentiary failings in assessing costs when they were material to my disposition of the motion.

[12] For these reasons, having considered the factors in Rule 57.01 in light of the costs principles I have already outlined, I find that the fair and reasonable amount of costs payable by the defendants to the plaintiff in respect of this motion is $3,350.00, inclusive of HST, plus $398.82 in disbursements, for a total of $3,748.82, payable within thirty (30) days. Order accordingly.

ASSOCIATE JUSTICE TODD ROBINSON

DATE: October 4, 2021