COURT FILE NO.: 2802/17
DATE: 2022 01 04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
THE REGIONAL MUNICIPALITY OF HALTON
Plaintiff
- and -
F. GRECO & SONS LIMITED O/A GRECO CONSTRUCTION, MICHAEL GRECO, JOHN FRANK GRECO, JOHN PAUL GRECO, SIRRON SYSTEMS INCORPORATED, SIRRON SYSTEMS INC., SIRRON GROUP INTERNATIONAL, SIRRON ELECTRICAL CONTRACTING CORPORATION, DAVID ALLAN NORRIS, MEEHAN’S INDUSTRIAL MAINTENANCE LTD., PATRICK VINCENT MEEHAN, JASON MATTHEW MOTE, GIULIO (JULIO) CERELLI, CANIAN PRECISION MACHINE SHOP LIMITED, WAHAN AGHAIAN, ELI ISHKHANIAN and LISA SNOWBALL
Defendants
Counsel:
Talia Gordner, for the Plaintiff
Paul Starkman, for the Defendant, Lisa Snowball
IN CHAMBERS
DECISION ON COSTS
Daley J.
[1] The plaintiff successfully moved under rule 30.10 for the production of financial records related to the defendant Lisa Snowball ("Snowball") from the third-party financial institutions: Regional Municipality of Halton v. Greco, 2021 ONSC 7339.
[2] In this action the plaintiff has asserted a loss of multiple millions of dollars allegedly related to the fraudulent conduct of the defendants.
[3] In view of the plaintiff' success on the motion, it is presumptively entitled to the costs of the motion.
[4] As directed, the plaintiff filed submissions as to costs including a costs outline detailing its costs on partial, substantial and full indemnity scales.
[5] The defendant Snowball filed cost submissions, however elected not to file a costs outline as was ordered.
[6] This defendant submits that the costs related to this motion should be left to the trial judge. This submission is contrary to the requirements of rule 57.03 which calls for the expeditious and timely determination of costs in respect of contested motions. As a result, I have determined that I am best placed to deal with costs following this motion.
[7] Although the legal issues considered on this motion under rule 30.10 were relatively straightforward, the positions advanced by the defendant Snowball significantly added to the issues involved and the time required to hear and adjudicate this motion. The defendant expanded the issues to be determined by firstly submitting that the affidavit evidence filed in support of the plaintiff's motion was inadmissible and it was further asserted that the reasons for decision of the trial judge in the criminal proceedings were admissible in the evidence on this motion. These submissions significantly added to the time involved in the preparation of submissions and the length of the oral submissions on the motion.
[8] As to the quantum of the costs sought by the plaintiff, the defendants assert that 64.8 billable hours incurred by counsel for the plaintiff was excessive and unreasonable given the nature and complexity of this motion. Many of the arguments advanced on behalf of this defendant simply amounted to a re-argument of the position put forward on the motion and as such they do not constitute proper submissions as to costs entitlement or quantum.
[9] The defendant Snowball elected not to file a costs outline and as such the court is left to consider the plaintiff's costs outline without the benefit of knowing what costs were actually incurred on behalf of the defendant in responding to the motion. The defendant's costs outline would show what costs the defendant could reasonably have expected to pay in the event she was unsuccessful on the plaintiff's motion.
[10] It has been held that an attack on costs claimed based on excessive time spent is no more than an "attack in the air" where the party has not delivered its own costs outline. It has also been held that the court may rightly infer that the party opposite devoted as much or more time to the proceeding as did the plaintiff in this case. The failure to deliver a costs outline, when so ordered, may not be determinative of what is a fair and proper amount for costs, but it is one factor that may be considered: Risorto v. State Farm Mutual Automobile Insurance Co., 2003 CanLII 43566 (ON SC), 64 OR (3d) 135 (Winkler J, as he then was).
[11] On reviewing the plaintiff's costs outline, it is notable that the billable time has reasonably been delegated to more junior lawyers, thus providing for the most economically reasonable allocation of lawyers' time to the required tasks involved in the preparation and argument of this motion. This resulted in lower hourly billing rates being applied to the time incurred. It is asserted on behalf of the defendant Snowball that the plaintiff's counsel "over lawyered" the work done in this matter. I have considered the costs outline filed on behalf of the plaintiff, and I can find no evidence of excessive time or duplication of time that would warrant any reduction in the billable hours incurred. Again, absent a costs outline on behalf of the defendant Snowball I am left to simply consider the costs as claimed by the plaintiff and its counsel's costs outline in the context of the requirements of rule 57.
[12] In considering the factors in rule 57.01, I have determined that given the significance of the relief sought on this motion, the time spent, the issues at stake in the action, as asserted in the statement of claim and the defendant Snowball's conduct in expanding the issues to be determined on the motion, the partial indemnity costs as claimed by the plaintiff are fair, reasonable, proportionate and an amount that the defendant should reasonably have expected to pay in the event she was unsuccessful on this motion.
[13] In the result I have concluded that the defendant Snowball is liable to the plaintiff for its costs on a partial indemnity basis in the all-inclusive sum of $28,125.92. It is ordered that she shall pay costs in that some within 30 days from the date of release of this decision.
Daley J.
Released: January 4, 2022
COURT FILE NO.: 2802/17
DATE: 2022 01 04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
REGIONAL MUNICIPALITY OF HALTON
- and -
F. GRECO & SONS LIMITED O/A GRECO CONSTRUCTION, MICHAEL GRECO, JOHN FRANK GRECO, JOHN PAUL GRECO, SIRRON SYSTEMS INCORPORATED, SIRRON SYSTEMS INC., SIRRON GROUP INTERNATIONAL, SIRRON ELECTRICAL CONTRACTING CORPORATION, DAVID ALLAN NORRIS, MEEHAN’S INDUSTRIAL MAINTENANCE LTD., PATRICK VINCENT MEEHAN, JASON MATTHEW MOTE, GIULIO (JULIO) CERELLI, CANIAN PRECISION MACHINE SHOP LIMITED, WAHAN AGHAIAN, ELI ISHKHANIAN and LISA SNOWBALL
DECISION ON COSTS
Daley J.
Released: January 4, 2022