COURT FILE NO.: CV-13-0024-00
DATE: 2022-10-26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Rudolph Steinberg, Jakob Steinberg and Amanda Steinberg minors by their Litigation Guardian, Rudolph Steinberg
M. Stoiko, for the Plaintiffs
Plaintiffs
- and -
Pamela Adderley
A. Demeo, for the Defendant
Defendant
HEARD: Submissions in Writing completed October 21, 2022
DECISION ON COSTS
[1] In my decisions on motions Steinberg v. Adderley, 2022 ONSC 5551 at paragraph 40, I indicated the defendant would have costs of the motion and the action if requested. The defence has now made that request.
[2] With respect to costs of the motion the defence seeks $6,890.00 on a substantial indemnity basis. The defence cites past conduct of the plaintiff as noted by another Justice in our court in a related action as a basis for a substantial indemnity award. As well the defence suggests that I found Mr. Steinberg’s conduct frivolous and that he acted in an inappropriate way in the course of the motions I heard.
[3] With regard to the action the defence seeks $70,000.00 plus disbursements of $9,605.08.
[4] Mr. Steinberg’s response to both defence request for costs is to indicate that he has appealed the decision of September 29, 2022. He cites Rule 63.01 of the Rules of Civil Procedure and the automatic stay regarding orders for payment of money as a basis for me to refrain from making a costs award at this point. This is an unpersuasive argument.
[5] While Rule 63.01 operates to stay any enforcement of the order for costs I am going to make, it does not preclude me from completing my function as motion judge by fixing costs of the motions and the actions.
[6] Counsel for Mr. Steinberg did not provide a costs outline either before or after the motions. This would have been helpful to compare to the costs requested by the defence.
[7] With respect to the motions, I fix the costs at $5,000.00 inclusive of disbursements and HST. The motion took a half day to argue. The matter was of a moderate complexity. The materials filed by both parties, including the facta were helpful to the Court. I am not prepared to award any costs for more than one lawyer for the defence on the motions. Mr. Demeo is senior counsel. He conducted the motions in an efficient and direct way. In my view the quantum awarded reflects what a reasonable losing party would expect to pay the successful party for motions of this type.
[8] The costs of the action are more difficult to fix. The defence provided a costs outline which set out that a quantum based on the actual rates of the various lawyers and clerks who worked on this file. The defence puts this at $142,380.00 excluding HST. At times there were more than two lawyers whose time is being sought by the defence. I am aware of the work of the other counsel from numerous appearances she has had before me. Her work was always excellent and efficient but in my view it is appropriate to award costs for only one counsel for the defence at any given time throughout this matter.
[9] There is no doubt this matter has dragged on largely as the result of decisions made by Mr. Steinberg. He has had five different lawyers. One change of counsel was occasioned by the unfortunate passing of the lawyer. However, there is no question this matter has required a large duplication of effort by the defence as the result of changing positions taken by the plaintiff. There have been a number of motions brought successfully by the defence for which costs are not now sought, but certainly add to the picture that this matter was not efficiently prosecuted by the plaintiff. The defence had to respond. There should be costs consequences.
[10] The defence submits Mr. Steinberg should pay $70,000.00 plus disbursements of $9,605.0 plus HST for the costs of the action that was dismissed as the result of my decision on motions cited above.
[11] The matter has been mired in pretrial wrangling. There were four days of discoveries. Mr. Steinberg’s decisions regarding his counsel led to significant changes in the plaintiff’s position, including the second lawyer on the file filing 27 new expert reports. This is a major factor in my agreeing to accept the defence submission that a quantum in the range proposed is just and equitable.
[12] The disbursements claimed appeared reasonable to me. However certain motion filing costs have been included and I am concerned this may represent a duplication from prior costs awards. Accordingly, I do not allow the October 2018 disbursement of $173.56, the May 2019 disbursement of $320.00, and the June 2022 disbursement of $320.00.
[13] The defence will have its disbursements fixed in the amount of $8,791.52.
[14] The plaintiff filed a trial record in 2014. The plaintiff was not ready for trial as it appears from his subsequent actions. The defence was put to significant expense by the actions of the plaintiff for an action that did not reach trial.
[15] I find that a reasonable quantum of costs for fees that an unsuccessful party should pay for a matter that has proceeded in a fashion such as this one is the amount of $50,000.00 plus HST.
[16] Order to go that Rudolf Steinberg pay Pamela Adderley forthwith costs for the motions and the action fixed in a total amount of $70,291.52 ($5,000.00 for motions, + 8,791.52 for disbursement in action + $56,500.00 for fees in the action inclusive of HST).
“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick
Released: October 26, 2022
COURT FILE NO.: CV-13-0024-00
DATE: 2022-10-26
SUPERIOR COURT OF JUSTICE - ONTARIO
Rudolph Steinberg, Jakob Steinberg and Amanda Steinberg minors by their Litigation Guardian, Rudolph Steinberg
Plaintiffs
- and -
Pamela Adderley
Defendant
DECISION ON COSTS
Fitzpatrick J.
DATE: October 26, 2022