Court File and Parties

COURT FILE NO.: CV-18-136882

DATE: 20220825

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Giuseppina Lucchese, personally and as Executrix of the Estate of Gaetano Lucchese, Plaintiffs

AND: A. Carnovale Holdings Inc., L. Carnovale Holdings Inc., The Estates of Elgin Mills Joint Venture, Luvian Homes (The Estates of Elgin Mills) Limited, The Estates of Taunton and Thickson Joint Venture and Luvian Homes (Taunton and Thickson) Limited

BEFORE: Justice C. Boswell

COUNSEL: Shawna Sosnovich for the defendants/moving parties, L. Carnovale Holdings Inc., The Estates of Elgin Mills Joint Venture, Luvian Homes (The Estates of Elgin Mills) Limited, and The Estates of Taunton and Thickson Joint Venture (referred to throughout as the “Lee Defendants”)

Gregory N. Hemsworth for the plaintiffs/responding parties

Aoife Quinn for the defendants A. Carnovale Holdings Inc. and Luvian Homes (Taunton and Thickson) Limited (referred to throughout as the “Anna Defendants”)

HEARD: Cost Submissions in Writing

COSTS ENDORSEMENT

Overview

[1] The Lee Defendants moved, on July 13, 2022, for two orders. First, that the plaintiffs produce a further and better affidavit of documents. Second, that Giuseppina Lucchese be produced for oral discovery.

[2] For reasons released on July 19, 2022 and reported at 2022 ONSC 4160, I ordered that the plaintiffs produce a further and better affidavit of documents. I declined to order that Mrs. Lucchese attend for an oral discovery. Instead, I ordered that she answer written interrogatories.

[3] I strongly encouraged the parties to agree on the issue of costs. They apparently were unable to do so. As an alternative I offered them the opportunity to make written submissions on costs on a fixed timetable. I have received their submissions and the following is my endorsement on the matter of costs.

The Governing Principles

[4] An award of costs, and the amount of the award, are in the court’s discretion. That discretion is grounded in section 131 of the Courts of Justice Act, R.S.O. 1990 c. C.43. Its application is guided by the factors enumerated in r. 57.01 of the Rules of Civil Procedure.

[5] The law is now well-settled that the overarching principles to be applied to the assessment of costs are fairness, proportionality and reasonableness: see Beaver v. Hill, 2018 ONCA 840; Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.); and Moon v. Sher (2004), 2004 39005 (ON CA), 246 D.L.R. (4^th) 440 (C.A.). In the context of determining what is fair, reasonable and proportionate, due consideration must be given to the reasonable expectations of the parties. See Neubuerger v. York, 2016 ONCA 303 at para. 17.

[6] By convention, costs are generally awarded to a successful party and are ordinarily measured on a partial indemnity basis. See Bell Canada v. Olympia & York Developments Limited et. al. (1994), 1994 239 (ON CA), 17 O.R. (3d) 135 (C.A.). In special circumstances, costs may be awarded on a higher scale, but those cases are exceptional. They are reserved for cases where there has been “reprehensible, scandalous or outrageous conduct on the part of one of the parties.” See Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at para. 241. See also Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239 at para. 43.

The Parties’ Positions

[7] The Lee Defendants seek their costs of the motion on a substantial indemnity basis, fixed in the amount of $14,217.87. They claim victory on the motion and suggest that the motion was necessitated by the unreasonable conduct of the plaintiffs.

[8] The amount claimed by the Lee Defendants is made up of $12,299 in substantial indemnity fees, HST of $1,598.87 and a disbursement of $320 for the cost of filing the motion record.

[9] The plaintiffs take the position that success on the motion was divided. They say while the Lee Defendants prevailed on the affidavit of documents issue, they prevailed on the oral discovery issue. They submit that no costs should be awarded in view of that split. Should the court nevertheless be inclined to award costs to the moving party, however, the plaintiffs urge the court to consider a modest sum of $3,500 all-inclusive on the basis that the motion was straightforward, short, involved no cross-examinations and resulted in at least some level of shared success.

Discussion

[10] This was a relatively straightforward procedural motion.

[11] It was scheduled on a motions list restricted to short motions but in my view it ought to have been scheduled as a long motion.

[12] A short motion is limited to one hour in length. That hour is meant to afford the court sufficient time to review any written materials, hear argument and craft a short endorsement. In the case of the Lee Defendants’ motion, it took me substantially more than an hour to read the written materials filed, a little over an hour to hear argument on the motion, and a significant number of hours to write a formal endorsement.

[13] I understand why parties attempt to shoehorn longer motions onto short motions lists. The time outs to available long motions dates are somewhat scandalous. Even the time outs for short motions dates are almost indefensible. That said, it was represented to the court that this was a short motion and costs will be assessed as though it was a short motion.

[14] Short motions are generally not complex. This motion, despite the amount of time it took to dispose of, was not complex. It was procedural in nature. As I observed in my endorsement on the substantive issues, the fact that it had to be argued at all reflected, in my view, that the real parties to this proceeding are separated spouses who are angry and bitter with one another.

[15] The Lee Defendants were successful on the motion. They got the order they wanted in terms of a further and better affidavit of documents. They got a form of discovery of Mrs. Lucchese, though not – at least for now – the form they were seeking. Partial success and divided success are not the same thing. The Lee Defendants were partially, indeed largely, successful on the motion. In my view they are entitled to their costs.

[16] Nothing I observed in the written materials filed on the motion, the arguments advanced during the hearing or the submissions made as to costs comes even close to justifying an award of costs on a substantial indemnity scale. Costs will be fixed on a partial indemnity basis.

[17] In my view, a fair, reasonable and proportionate award of costs for this short, procedural motion is $7,500, all inclusive. That amount is payable by the plaintiffs to the Lee Defendants within 30 days.

C. Boswell J.

Date: August 25, 2022