Court File and Parties

COURT FILE NO.: CV-19-621329-0000 DATE: 2022-11-25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Vito Buffone AND: Anthony Bryant and Burstein Bryant

BEFORE: J.T. Akbarali J.

COUNSEL: Mark A. Klaiman, for the Plaintiff Gerald Chan and Stephen Aylward, for the Defendants

HEARD: In writing

ENDORSEMENT

[1] The defendant, Anthony Bryant, moved, in writing, for an order striking the plaintiff’s statement of claim without leave to amend under r. 21.01(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the grounds that the plaintiff’s claim is an abuse of process. I released reasons granting the defendants’ motion on November 17, 2022: Buffone v. Bryant, 2022 ONSC 6453.

[2] In my reasons I noted that, although the defendant’s notice of motion indicates that he seeks substantial indemnity costs, he filed no bill of costs or costs outline on the motion. As a result, I made no order as to costs.

[3] Counsel has since written to me explaining that the failure to file a costs outline was an oversight, and seeking leave to submit costs submissions.

[4] At a time when the courts are facing a significant backlog, it is incumbent upon counsel to assist the court in being as efficient as possible. Had the costs outline the defendant has now delivered been available to me when I adjudicated the motion, adjudicating costs would have taken me significantly less time than it does to now address costs in a separate endorsement. That is time that could have been spent on other judicial duties.

[5] Yet counsel routinely fail to prepare costs outlines and bring them to the motion as they are required to do under r. 57.01(6) of the Rules of Civil Procedure.

[6] This motion, however, falls under r. 57.01(5) of the Rules of Civil Procedure, which requires counsel, after the hearing of a motion that disposes of a proceeding to serve a bill of costs and file it with proof of service. The defendant is thus not offside the Rules by failing to deliver his bill of costs before the motion was adjudicated. (Although counsel has delivered a costs outline instead of a bill of costs, I am satisfied that the non-compliance with r. 57.01(5) is technical only.) I am prepared to consider the defendant’s claim for costs.

[7] I observe, however, that in many cases, even where a matter falls under r. 57.01(5), it is not only possible, but preferable, for counsel to file a bill of costs contemporaneously with the motion. This case is one example. I encourage counsel whose motions fall within the scope of r. 57.01(5) to consider filing their bill of costs together with their motion materials, to promote the maximum efficiency of the court. In cases that fall under the scope of r. 57.01(6), counsel is obliged to do so, and may find that failure to respect the rule will result in a no costs order in the future.

[8] I now turn to the defendant’s request for costs in this case.

[9] The three main purposes of modern costs rules are to indemnify successful litigants for the costs of litigation, to encourage settlement, and to discourage and sanction inappropriate behaviour by litigants: Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330, at para. 22.

[10] Subject to the provisions of an Act or the rules of court, costs are in the discretion of the court, pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The court exercises its discretion taking into account the factors enumerated in r. 57.01 of the Rules of Civil Procedure, including the principle of indemnity, the reasonable expectations of the unsuccessful party, and the complexity and importance of the issues. Overall, costs must be fair and reasonable: Boucher v. Public Accountants’ Council for the Province of Ontario, 2004 14579 (Ont. C.A.), 71 O.R. (3d) 291, at paras. 4 and 38. A costs award should reflect what the court views as a fair and reasonable contribution by the unsuccessful party to the successful party rather than any exact measure of the actual costs to the successful litigant: Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), 2002 CarswellOnt 4020, 118 A.C.W.S. (3d) 341 (C.A.), at para. 4.

[11] The defendant seeks costs on a substantial indemnity scale, arguing that where a finding of abuse of process is made, this court has discretion to award costs on an elevated scale: 4361814 Canada Inc. v. Dalcor Inc., 2015 ONSC 2486, at paras. 22-23.

[12] In my view, it is appropriate to award substantial indemnity costs in this case, taking into account my finding that the action is an abuse of process, together with the clear warning that Myers J. gave the plaintiff that Court of Appeal authority indicated that the claim was a collateral attack on the criminal conviction. Myers J.’s caution was repeated in his endorsement, leaving no doubt that the controlling jurisprudence was clear. Having been warned, the plaintiff delivered no materials in response to the motion. The plaintiff’s action was an abuse of the court’s process, and the plaintiff’s conduct caused the defendant to incur costs that should have been unnecessary, and caused the court to devote time to an issue that should have been conceded.

[13] The defendant’s costs outline supports full indemnity costs of $16,430.98 all inclusive. In determining the quantum of costs that is fair and reasonable, I note, in addition to those factors set out above:

a. the claim sought $1,500,000 in damages – a significant amount;

b. the proceeding was not complex, but had a lengthy factual background that counsel had to understand;

c. the issues were significant to the defendant in view of the allegations of professional negligence made against him;

d. counsel’s hourly rates are more than reasonable. Much work was appropriately delegated to less expensive timekeepers. The time spent overall was reasonable.

[14] In the result, I conclude that substantial indemnity costs of $12,000 all-inclusive are fair and reasonable, and shall be paid by the plaintiff to the defendant within thirty days.

J.T. Akbarali J.

Date: November 25, 2022