COURT FILE NO.: CV – 20 – 00639143

DATE: 20231019

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: GEORGE BARGIS, Plaintiff

AND: DIMITRA BARGIS, JOHN BARGIS AND KATINA BARGIS, Defendants

BEFORE: Koehnen J.

COUNSEL: Mark Ross, Eric Brousseau for the plaintiff Christopher Statham for the defendant Dimitra Bargis Craig Vander Zee for the defendants John and Katina Bargis

HEARD: In writing

Costs ENDORSEMENT

[1] This endorsement addresses costs arising out of a summary judgment motion that the defendants brought to dismiss the action, which motion I granted pursuant to oral reasons given on the day of the motion.

[2] Dimitra Bargis seeks costs of $70,235.52 on a full indemnity scale, including HST and disbursements.

[3] John and Katina Bargis seek costs of $173,597.15 on a full indemnity scale, including HST and disbursements. To avoid confusion between the parties, all of whom share the same surname, I will refer to them by their first names. I mean no disrespect in doing so.

[4] The parties’ submissions raise two issues with respect to costs: scale and quantum.

Scale of Costs

[5] As noted, the defendants seek full indemnity costs. The plaintiff submits that costs should be awarded on a substantial indemnity scale. In my view, costs should be awarded on a full indemnity scale.

[6] I granted the motions for summary judgment based on a settlement that the parties had entered into with respect to issues that George tried to raise afresh in this action. The settlement included a release. The release provided that if a releasor commenced a subsequent lawsuit against a releasee in respect of the released matters, the releasor would be liable to the releasees for “all legal costs incurred in any such proceeding, on a solicitor and his own client scale.”

[7] The plaintiff submits that the modern equivalent of “solicitor and his own client” costs refers to substantial indemnity costs, not full indemnity costs. He relies on certain cases to this effect that I will address momentarily. The defendants submit that “solicitor and his own client costs” is the older phrase for what is referred to today as full indemnity costs. I agree with the defendants in this regard. The phrase “solicitor and his own client costs” has the same meaning as the current expression “full indemnity costs.”

[8] Historically, a reference to costs on a “solicitor and his own client scale” meant costs on what is referred to today as a full indemnity scale.[^1] The modern equivalent of substantial indemnity costs was referred to as solicitor and client costs.

[9] Some confusion has entered into the case law because some cases state “solicitor and his own client costs” is the equivalent of substantial indemnity costs.[^2] In my view, those cases are distinguishable. None of those cases required the court to determine what, if any, difference there is between “solicitor and his own client costs,” full indemnity, substantial indemnity or “solicitor and client costs.” Not only were the statements obiter, they arose in circumstances in which the obiter was more of a casual reference in passing without considering the issue.

[10] The most recent of these cases is Ntakos Estate v. Ntakos,[^3] a case quite similar to the one before me in that it was dismissed based on a settlement and a release that called for any party commencing an action in breach of the settlement to be responsible for the costs of the other parties on a “solicitor and his own client scale.” In paragraph 18 of those reasons the court stated:

The 2012 Release also includes Gus as a Releasee. In addition, as I noted in my Reasons, the 2012 Release also released Gus’s solicitors, Fogler Rubinoff LLP, as a Releasee. This Release provided for indemnification of legal costs on a “solicitor and his own client scale,” which has generally been accepted to be synonymous with costs on a substantial indemnity basis: Caisse v. River, 2014 ONSC 1426 at para. 1; White v. Colliers Macaulay Nicholls Inc., 2009 ONCA 444 at para. 54.

[11] In Ntakos, however the issue did not involve the differences between the expressions “solicitor and his own client costs,” solicitor and client, substantial indemnity or full indemnity costs. Rather, the issue appears to have involved the successful parties claiming more in costs than their lawyers actually billed them[^4] and the overall reasonableness of those costs.[^5] In this regard, it is important to remember that even full indemnity costs or “solicitor and his own client costs” do not entitle a party to claim whatever a lawyer charged. What the lawyer charged must still be reasonable, fair and correspond to the reasonable expectations of the parties.[^6]

[12] As is evident from the quotation from Ntakos in paragraph 10 above, the court relied on two cases in making the comment it did. The first was the Ontario Court of Appeal’s decision in White v. Colliers Macaulay Nicholls Inc.[^7] In paragraph 54 of that decision, the Court of Appeal notes that the trial judge awarded costs on a substantial indemnity basis. He did so on the basis of a release signed by the parties that awarded a releasee its costs “on a solicitor and his own client scale.” The Court of Appeal notes however that the appellant did not raise the cost issue in either its factum or oral argument and that it was “therefore unnecessary to deal with it”.[^8] The court nevertheless rejected the appeal on costs because it was open to the trial judge to arrive at the disposition he did.[^9] Once again, the court was not called on to interpret the phrase “solicitor and his own client scale.”

[13] The second case on which the court relied in Ntakos is Caisse v. River[^10] where the court said that “The term “solicitor and own client costs” is synonymous with substantial indemnity costs.”[^11] Later, in the same paragraph, the court stated:

I find that the Respondents must have clearly contemplated that they would be responsible for the Applicant’s entire legal costs in the event of an action or proceeding being brought for enforcement of the security under that agreement.

The balance of the decision assesses the reasonableness of the costs claimed, not the scale. There again, the court was not called on to interpret the difference between “solicitor and own client costs” as the security agreement provided for and other cost scales.

[14] Quite apart from any divergence in the case law about the meaning of “solicitor and his own client” costs, in my view the intention of the release was clear. It was to put an end to all litigation between the parties concerning the subject matter of the release. The stick to enforce that obligation was to compel any party who breached the release to make the other releasees whole for any costs they incurred as a result of the breaching releasor’s action. Anything short of that would compromise the underlying purpose of the release.

[15] Although the court always retains a residual discretion to adjust the scale of costs, that discretion should not be exercised here in favour of the plaintiff. The action the plaintiff brought simply had no legitimate basis for the reasons set out in my reasons for judgment. Enforcing the intention of the parties means awarding costs on a full indemnity scale.

Quantum of Costs

[16] Awarding costs on a full indemnity scale does not, however, mean awarding whatever a lawyer or a party asks for. Even full indemnity costs must nevertheless fall within the reasonable expectations of what a party might expect to pay for costs.

[17] As noted, Dimitra seeks costs of $70,235.52 on a full indemnity scale, including HST and disbursements. John and Katina seek costs of $173,597.15.

[18] The plaintiff submits that an overall cost award of approximately $100,000 would appropriate in the circumstances. The plaintiff concedes that its own costs came to approximately $86,000 but notes that he had to defend two motions for summary judgment. While there may have been some added cost for the two summary judgment motions for things like additional examinations, the second motion would come nowhere near to doubling the plaintiff’s costs.

[19] It is also not uncommon that a moving party’s costs would be higher than those of the responding party because it is easier to attack a case than it is to make one out.

[20] It strikes me that the costs of counsel for Dimitra Bargis are reasonable. Their costs come to less than those of the plaintiff. Although the plaintiff may have had to respond to two summary judgment motions, there was substantial overlap in the content of the two motions.

[21] I am concerned about the time accumulated by the lawyers for the John and Katina. They seek costs of $173,597.15. That is substantially higher than the cost sought by Dimitra. I accept that they may have had a little more work to do because they had two defendants with two sets of cross examinations and because the allegations against them were of a more factually detailed nature. That said, the core defence remained the same, that of a full and final release.

[22] I note that John and Katina’s bill of costs shows that the three lawyers worked on the file had 29 years, 21 years and 18 years of experience. This was not the sort of case that required three senior counsel. This case could have been effectively managed with a single more junior partner and a junior associate. Although parties have the right to choose whatever lawyers they wish and lawyers have the right to staff their files however they wish, that does not mean that cost awards will reimburse parties on the basis of those wishes.

[23] The overriding factor in a cost award is to award costs that are fair and reasonable in the circumstances. It strikes me that the costs of Dimitra set a relatively good benchmark for what is fair and reasonable in the circumstances. I would fix Dimitra’s costs at $70,235.52 including HST and disbursements as she requested.

[24] In recognition of the additional time John and Katina’s lawyers may have had to spend on the double examinations and the more detailed factual allegations I would award them $110,000 including HST and disbursements.

Date: October 19, 2023

Koehnen J.

[^1]: Davies v. Davies, 1968 CanLII 252 (Ont. Sup. Ct.); Re Seitz, 1974 CanLII 853 (Ont. Sup. Ct.); Charleston Partners v. Dickinson, 1996 CanLII 739 (Ont. C.A.); Frearon v. Ellsworth 2020 ONCJ 583 at para. 57. [^2]: Ntakos Estate v. Ntakos, 2021 ONSC 3695 at para. 18; citing White v. Colliers Macaulay Nicholls Inc., 2009 ONCA 444, per Blair J.A. at para. 55 and Caisse v. River, 2014 ONSC 1426, 2014 ON SC 1426 at para. 1. [^3]: Ntakos Estate v. Ntakos, 2021 ONSC 3695 [^4]: Ntakos Estate v. Ntakos, 2021 ONSC 3695 at para.6. [^5]: Ntakos Estate v. Ntakos, 2021 ONSC 3695 at para. 30. [^6]: Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 [^7]: White v. Colliers Macaulay Nicholls Inc., 2009 ONCA 444 [^8]: White v. Colliers Macaulay Nicholls Inc., 2009 ONCA 444 at para. 54. [^9]: White v. Colliers Macaulay Nicholls Inc., 2009 ONCA 444 at para. 54 and 56. [^10]: Caisse v. River, 2014 ONSC 1426 [^11]: Caisse v. River, 2014 ONSC 1426 at para. 2.