Court File and Parties

COURT FILE NO.: CV-13-482156

DATE: 20210201

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sabrina Mattiucci and Giancarlo Mattiucci, Plaintiffs

AND:

Stephen Roman, Jennifer Mantello-Roman, Stewart Title Guaranty Company, Steven Carcasole carrying on business as Ampwood Home Inspections; and The Corporation of the Township of King, Defendants

BEFORE: Pinto J.

COUNSEL: Emilio Bisceglia and Adriana DiBiase, for the Plaintiffs

H. Richard Bennett, for the Defendant Stephen Roman

HEARD: In Writing

COSTS ENDORSEMENT

[1] The trial in this matter was originally set to proceed on November 23, 2020. At the time, I was assigned as the trial judge. The trial has since been rescheduled to commence on March 1, 2021, and I am no longer the trial judge. However, in November 2020 I issued several decisions and reserved on the matter of costs. This is my decision with respect to those costs.

[2] The decisions I issued in November 2020 consisted of the following:

(a) My Reasons for Decision dated November 17, 2020, published as Mattiucci v. Roman, 2020 ONSC 7008, pertaining to the parties’ motions heard on November 16. I dismissed the plaintiffs’ motion to strike out Mr. Roman’s defence due to his late filing of an expert report; and I granted Mr. Roman leave to file his expert report late, and to present the evidence of more than 3 experts at trial. I directed that the trial could start a few days later than the original November 23 start date, so long as it did not commence later than November 30. I also directed, inter alia, that Mr. Roman provide information concerning certain photographs that he had found but not produced, and to attend discovery concerning those photographs.

(b) Endorsement dated November 20, 2020, pertaining to a Case Conference on November 19. By this time, Mr. Roman had attended discovery but took the position at discovery that he was not able to answer certain questions. I directed further production from Mr. Roman and set the trial date for November 30, 2020.

(c) Endorsement dated November 27, pertaining to a Case Conference on November 24. I found that Mr. Roman had still not completed the review of his legal file despite my November 20 order to do so, and that he had not provided a digital copy of the contents of a USB stick. Mr. Roman had also not responded to plaintiffs’ counsel with respect to the finalization of his witness list, witness summaries, the Joint Book of Documents, or Agreed Statement of Facts. In the circumstances, and because the plaintiffs were not able to respond in a timely manner to Mr. Roman’s late filed expert report, I vacated the November trial dates and rescheduled the trial to commence on March 1, 2021.

[3] As the parties were unable to agree on costs, they provided written submissions which I have considered in arriving at this decision on costs.

[4] The plaintiffs characterize the issue as one of costs “thrown away” as a result of the unfair actions of Mr. Roman which caused unnecessary attendances before the Court, delay and an adjournment of the trial. The plaintiffs seek $18,329.56 on the basis of a Bill of Costs on a substantial indemnity scale.

[5] The defendant, Mr. Roman, now represented by counsel, takes a more “step by step” approach to the various attendances in November 2020. He submits that, with respect to the November 16 motions, no costs should be ordered since his motion for late filing of an expert report was successful, and the plaintiffs’ motion to dismiss his defence was dismissed. With respect to the November 19 and November 24 Case Conferences, Mr. Roman submits that since he complied with my various orders, there should be no costs awarded. Alternatively, in respect of both the motions and two Case Conferences, Mr. Roman submits that he should pay costs in the cause, fixed in the amount of $1,500.

[6] Costs are in my discretion. I make the following findings which will inform my decision on costs.

[7] While Mr. Roman’s motion was successful on November 16, 2020, and the plaintiffs’ motion was not, the overall context was that the motions were necessary because of Mr. Roman’s late filed expert report. As well, Mr. Roman did not act reasonably or in a timely manner even after November 16. I agree with the plaintiffs’ submission that “Roman’s inaction and failure to act in a timely manner, directly resulted in the late delivery of new relevant documents, the late delivery of the Mazzolin Report, the need for the recent examination of Roman, the need for several case conferences before Justice Pinto, the need for the Plaintiffs’ motion and ultimately, the delay and adjournment of the trial”. Overall, I agree with the plaintiffs that they should be awarded costs for the motions and two Case Conferences.

[8] “Costs thrown away essentially is a request that a party’s costs for trial preparation which have been wasted and trial preparation that will have to be redone as a result of the adjournment of the trial.”: Graziano et al v Ciccone, 2017 ONSC 362, at para. 8. A review of the plaintiffs’ Bill of Costs suggests that they are seeking costs in respect of additional motions, preparation and attendances associated with the late filing of Roman’s expert report, and his late production, but they have also included certain items that will not have to be redone for the trial, now commencing in March 2021. Accordingly, I have not permitted all the costs listed by the plaintiffs to be claimed.

[9] With respect to the scale of costs, I would permit it at a substantial indemnity scale of 80% either on the basis that Mr. Roman refused the plaintiff’s offer to settle, or based on the “costs thrown away” model, and/or based on his conduct: Graziano, at para. 9.

[10] In terms of Mr. Roman’s improper and dilatory conduct:

(a) He failed to deliver his expert report in accordance with the Order of Justice Firestone dated January 16, 2020;

(b) He failed to deliver his expert report in accordance with the Rules;

(c) Over the first three days of the pre-trial, October 23, 27 and 28, 2020, Mr. Roman failed to advise the plaintiffs that he would be serving new documents;

(d) He breached the terms of the Trial Management Report filed with Justice Stinson;

(e) He failed to complete his review of his legal file by 4:00 p.m. on November 30, 2020, as required by my November 20, 2020 order; and

(f) He took an unreasonable position and declined to answer questions that he should have been prepared to answer on his discovery on November 19, 2020.

[11] On a review of the plaintiffs’ Bill of Costs, I find the plaintiffs’ lawyers rates and the disbursements to be reasonable. However, I decline to allow certain categories of costs that I do not consider to fairly arise from the motions and case conferences discussed above. The impermissible categories are “A. Review of Productions of Parties”, “B. Review of Transcripts”, “D. Preparation of Trial Documents”, and “J. Pre-Trial on November 24, 2020 before Justice Stinson”.

[12] Conversely, the following categories are acceptable, at the Substantial Indemnity Rate.

C. Review of Experts’ Reports

$2,862.00

E. Preparation of Motions Returnable November 16, 2020

$2,674.80 @ 50% = $1,337.40. Technically, the plaintiff’s lost their motion and Mr. Roman succeeded on his, but the overall context was the late filing of the expert report which resulted in the delay of the trial. I have reduced the plaintiffs’ costs by 50% to reflect this.

F. Case Conference on November 16, 2020

$1224.00

G. Examination of Stephen Roman on November 19, 2020

$1,188.00

H. Case Conference on November 19, 2020

$792.00

I. Case Conference on November 24, 2020

$396.00

K. Preparation of Costs Submissions

$900.00

Sub-Total

$10,036.80

HST @ 13%

$1,304.78

Disbursements – Victory Verbatim

$641.90

Total

$11,983.48

[13] I reject Mr. Roman’s submission that, if costs are to be awarded in favour of the plaintiffs, it should await the end of trial. That would be contrary to the purpose of awarding costs thrown away: Graziano, at para. 28. I also find it is appropriate, in the circumstances, to reduce the time for payment from 30 to 21 days, so that payment can be made before the start of the trial.

[14] Accordingly, I order that the Defendant, Mr. Roman, pay the plaintiffs’ costs fixed in the amount of $11,983.48 within 21 days of the release of this costs endorsement.

[15] This endorsement should be treated as an Order that is effective, binding and enforceable without the requirement of a formal entry. If, however, an appeal or a motion for leave to appeal is brought to an appellate court, a party shall submit a formal judgment or order in WORD format for my consideration through my judicial assistant with confirmation from opposing counsel that the terms of the draft judgment or order have been agreed upon.

Pinto J.

Date: February 1, 2021