Court File and Parties

Court File No.: CV-12-0062 -00 Date: 2024-05-30 Superior Court of Justice – Ontario

Between: Warren Hughes, Plaintiff (Defendant to the Counterclaim)

And: Terry Dyck, Defendant (Plaintiff by Counterclaim)

Before: Madam Justice H. M Pierce

Counsel: N. Melchiorre, for the Plaintiff (Defendant to the Counterclaim) D. Zulianello, for the Defendant (Plaintiff by Counterclaim)

Heard: Via Zoom May 28, 2024

Reasons on Costs of Summary Judgment Motion

[1] The defendant moved for summary judgment, arguing that the plaintiff’s claim was statute-barred. The motion was dismissed with costs to be determined if counsel could not agree. Counsel did not agree and so costs were ultimately argued.

[2] I have determined that the defendant shall pay the plaintiff’s costs fixed at $7,500.00 plus HST, payable within thirty days. The following are my reasons.

[3] The plaintiff seeks substantial indemnity costs fixed at $30,448.71 including fees, disbursements and HST. calculated on 85% of full indemnity rates. He submits that substantial indemnity costs are warranted, given the complexity of the matter, the importance to the parties, and the delay in having the matter heard.

[4] The defendant submits that costs of the motion should be in the cause or alternatively, fixed, to be payable at the end of the trial. He argues that the costs claimed are excessive, and points to his own bill of costs to establish the defendant’s reasonable expectations with respect to costs.

[5] Rule 20.06 provides that the court may “fix and order payment of the costs of a motion for summary judgment on a substantial indemnity basis if the party acted unreasonably by making … the motion or… acted in bad faith for the purpose of delay.” The current wording of the rule does require substantial indemnity costs payable automatically by the losing party.

[6] In this case, the plaintiff submits that the legal basis for the motion was insufficient. He does not allege bad faith. Although the hearing of the matter was adjourned twice, the adjournments were on consent. There is no evidence of bad faith or intentional delay in the motion for summary judgment. Therefore, substantial indemnity costs are not warranted.

[7] The plaintiff cites an offer to settle. As the offer addresses the dispute as a whole and not the motion itself, it is irrelevant to this argument for costs.

[8] Costs are in the discretion of the court. The general principles that apply are set out at Rule 57.01. Rule 57.01(1) (0.b) allows the court to consider “the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed.”

[9] The defendant has filed his bill of costs for fees on a partial indemnity scale of $9,695.40 including HST. This represents his expectations of costs relative to the motion, as set out in the rule. Mr. Zulianello has been practicing law for 21 years.

[10] The plaintiff’s bill of costs claims fees of $23,167.23 plus disbursements of $180.12 on a partial indemnity scale. Mr. Melchiorre has been a lawyer for 20 years.

[11] Both parties claim the time for argument at 2.5 hours. Each party filed affidavits with exhibits, factums, and compendiums. The judgment was a mere ten pages. Mr. Zulianello expended 38.70 hours while Mr Melchiorre claimed 48.3 hours plus assistance of junior counsel who claimed an additional 78.1 hours.

[12] In my view, the plaintiff’s bill of costs is excessive given the nature of the motion and the fact that the plaintiff was a responding party. While it may have been helpful for Mr. Melchiorre to have the assistance of junior counsel, and while the experience may have been educational for a new lawyer, it is not reasonable that those costs should be borne by the losing party.

[13] Furthermore, the court must be mindful that access to justice is governed by, among other things, the costs of litigation. Escalating costs may drive litigants out of the legal marketplace. Costs must therefore be in proportion to what is at issue and comparable to costs awarded in like cases.

[14] As the courts have observed, costs or the risk of costs serve not only to indemnify a winning party and curtail unnecessary proceedings, but they also allow parties to assess the true cost of litigation as it proceeds. Costs incurred or the risk of future costs will inevitably inform settlement proposals. For that reason, I decline to award costs in the cause or fix them and order them to be paid after trial. In my view, parties who do not feel the impact of costs as the litigation proceeds may have little incentive to attempt to settle their case prior to trial.

[15] Mr. Melchiorre has claimed disbursements for laser printing and colour printing and copying. In my view, these costs fall under overhead, governed by the lawyer’s fee and are not claimable. Furthermore, with the advent of electronic filing, it is the court that increasingly bears the burden of printing and copying, not counsel. These costs are disallowed.

“originally signed by”

The Hon. Madam Justice H. M. Pierce

Released: May 30, 2024