Court File and Parties

COURT FILE NO.: CV-18-00600760 DATE: 20220208 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Alexandra Solis, Plaintiff AND: Canadian Beauty College Inc., Dorotea Bauco aka Dorothy Bauco, Christopher Rich, and J.Doe 1, Caroline Torrecampo and Amanda Filipe, Defendants

BEFORE: D.A. Wilson J.

COUNSEL: Jeremy M. Syrtash, for the Plaintiff Matthew R. Harris, for the Defendant, Caroline Torrecampo

HEARD: In Writing

Endorsement

[1] This is an action brought by the Plaintiff under the Simplified Rules claiming damages based on cosmetic procedures she undertook at the Defendant Canadian Beauty College Inc. (“College”). In the Statement of Claim issued in 2018, she included the Defendants J. Doe #1 and #2 who were students whose identities were not known. J. Doe #3 was the supervisor.

[2] I approved a timetable in June 2020 for a variety of steps in the litigation. After that, the College advised of the identity of J. Doe #2 and #3. As a result of this information, the solicitor for the Plaintiff sought to amend the Claim to include the correct names of the J. Doe Defendants. The solicitor for one of the individuals sought to be named, Ms. Torrecampo, opposed the amendments. Thus, a motion was brought which I heard on September 2, 2020.

[3] In my reasons, I found there was no evidence of prejudice to Torrecampo and I granted the Plaintiff’s motion to amend the Claim to name the individuals. I noted the motion ought to have been unopposed and indicated that if counsel could not agree on the costs of the motion, I could be contacted. They have now done so, and the Plaintiff has provided written submissions as has the Defendant Torrecampo. I have reviewed and considered these submissions.

[4] The Plaintiff seeks partial indemnity costs for the motion in the sum of $9,000 plus HST and disbursements which total $1,768.56. Mr. Syrtash submits that not only was a great deal of time required to put together the motion record, but counsel for the Defendant insisted on a cross examination of Mr. Elamaleh on his affidavit filed in support so there was much wasted time. The amount sought is less than the actual time that was expended to draft and prepare for the motion.

[5] The Defendant Torrecampo suggests that costs for the motion be awarded in the cause. Mr. Harris submits that the quantum of costs sought are excessive, although he does not set out what quantum might be considered appropriate. He requests that the Court exercise its discretion when fixing costs to arrive at a sum that is fair and reasonable and what an unsuccessful party could reasonably expect to pay. Mr. Harris takes issue with the length of time it has taken the solicitor for the Plaintiff to deal with the issue of costs.

Analysis

[6] The Plaintiff was successful on the motion to substitute the names of the Defendants; only Torrecampo opposed the motion, Filipe did not. Presumptively, costs follow the event and I see no reason to depart from that procedure; the Plaintiff is entitled to the costs of the motion, which I will fix.

[7] In my reasons, I stated that the motion ought not to have been opposed. The language of Rule 26 is permissive and an amendment shall be granted unless a party can establish prejudice. There was no evidence of prejudice filed at the motion; rather counsel urged me to find that it was not Torrecampo that provided the services about which the Plaintiff now complains. Whether or not a Defendant will ultimately be found liable to a Plaintiff is not the test on a motion for misnomer. Given the action was at the pleadings stage when the motion was brought, the Defendant Torrecampo had ample opportunity to defend the case as she saw fit; that was no basis for opposing the motion.

[8] In my view, the decision to oppose the motion was ill-considered on the law and on the facts of the case; it was not necessary to conduct a cross examination of Mr. Elmaleh. As a result, the time of the solicitor for the Plaintiff was wasted unnecessarily. This is a Simplified Rules action and ought to proceed forward in an efficient fashion.

[9] I have reviewed the Costs Outline submitted by counsel. I have considered the factors enumerated under Rule 57, including the time spent, the results achieved, and the complexity of the matter, as well as the application of the principle of proportionality: Rule 1.04(1).

[10] Furthermore, I have taken into account the principles set forth by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON C.A.), (2004), 71 O.R. (3rd) 291 (C.A.), specifically that the overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant.

[11] I do not find the hours claimed excessive nor do I find the hourly rates of counsel on a partial indemnity scale too high. The disbursements are the charges from the reporter’s office for the cross examinations and transcripts. Mr. Harris cannot be surprised by the costs of the cross examination.

[12] In my view, costs of $9,000 plus HST plus the disbursements of $1,768.56 are reasonable and proportionate and in accordance with the factors set out in Rule 57.01 of the Rules of Civil Procedure and I fix them in that amount payable by the Defendant Torrecampo to the Plaintiff forthwith.

Date: February 8, 2022