Court File and Parties

COURT FILE NO.: CV-23-00000005-0000 DATE: 2023-11-02 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

2516216 Ontario Ltd. o/a NUMBRS Applicant

Alexis Beale, counsel for the Applicant

• and -

AbleDocs Inc. Respondent

Michael Prosia, counsel for the Respondent

HEARD: May 24, 2023 at Cayuga

THE HONOURABLE JUSTICE R. B. REID

Decision on Costs of Motion

[1] The applicant, 2516216 Ontario Ltd. o/a NUMBRS (“Numbrs”), brought an application against the respondent, AbleDocs Inc. (“AbleDocs”). By decision dated August 28, 2023, a judgment was granted in favour of Numbrs against AbleDocs in the amount of $111,680.38 plus prejudgment interest. The corresponding motion by AbleDocs dated May 10, 2023 was dismissed.

[2] The parties were encouraged to resolve the issue of costs consensually, but were unable to be so, and each has made written submissions on the subject and has filed a Bill of Costs.

[3] The discretion to award costs arises from s. 131 of the Courts of Justice Act. I have considered the factors which guide the exercise of that discretion found in rule 57.01 of the Rules of Civil Procedure.

[4] Success is a presumptive factor justifying an award of costs. Here, the applicant was wholly successful. The questions are therefore whether the quantum of costs claimed is reasonable and what scale of costs to apply.

[5] The applicant’s Bill of Costs details the expenditure of about 80 hours throughout the course of the application. The respondent’s Bill of Costs shows about 60 hours of time. I accept that the applicant may well have had to spend more time to prosecute the matter than the respondent did to defend it, and do not question the proportional difference. In my view, the hours claimed are within a range that the respondent could reasonably have foreseen.

[6] Based on the evidence and submissions, I disagree with the applicant that there was intentional delay or complication of the proceeding as a result of the respondent’s conduct so as to justify costs throughout on a substantial indemnity basis.

[7] The applicant served an Offer to Settle in accordance with rule 49, which was outstanding as of the hearing date and which was in an amount less than the amount of the judgment. As a result, the applicant claims entitlement to costs on a partial indemnity basis to the date of the offer (March 1, 2023) and thereafter on a substantial indemnity rate for a total of $41,494.31 including HST and disbursements.

[8] The respondent submits that the applicant should be denied all costs or at least receive an order for costs on a reduced basis despite its success in the matter because of the conduct of applicant’s counsel who aggressively pursued the settlement of the judgment including threats to make a claim personally against respondent’s counsel if assets were dissipated during any period of delay.

[9] I agree with counsel for the respondent that the actions of applicant’s counsel were not appropriate. While it is reasonable to pursue a claim expeditiously and avoid undue delay, this case did not languish. It was issued on February 13, 2023, and the application was heard on May 24, 2023. Initial service was accepted by respondent’s counsel. The first proposal for scheduling of a case conference by the applicant was not accepted for legitimate personal reasons of counsel for the respondent. Reasonable offers to settle were exchanged. As to the terms of the draft judgment, three hours after a draft was forwarded by applicant’s counsel, respondent’s counsel replied that he would return from vacation the next day and had scheduled to meet with the respondent several days later. The court was advised the following day by applicant’s counsel that “[u]nfortunately, my friend and his client are conducting themselves in a way that will require an attendance…”. Two minutes later, counsel wrote to her counterpart “Note that you will be pursued personally if we eventually determine that assets have been dissipated in this interim period.”

[10] In my view, whatever pressure may have been applied by the plaintiff on its counsel, counsel’s responsibility is to make reasonable accommodations when clearly justified. However, I am not satisfied that the conduct of plaintiff’s counsel was so egregious as to justify depriving the plaintiff from its entitlement to an award of costs.

[11] Therefore, and for the foregoing reasons, the applicant will have a costs award payable by the respondent in the all-inclusive amount of $41,494.31.

Reid J. Released: November 2, 2023