Court File and Parties

Court File No.: CV-22-00691534 Date: 2025-09-18 Ontario Superior Court of Justice

Between: Roy Pelley, Plaintiff – and – Rick Pelley, Defendant

Counsel: Kevin Mooibroek and Lindsay Poole, Lawyers for the Plaintiff Avin Persad-Ford and Howard Cohen, Lawyers for the Defendant

Heard: Written Submissions

Reasons for Decision on Costs

Mr. Justice G. Dow

Background

[1] This matter proceeded to a summary trial before me between January 29 to February 3, 2025. My decision (2025 ONSC 733) was released June 3, 2025. I dismissed the plaintiff's action for 50 percent of the defendant's $301,000 winning at the "Let it Ride" Jackpot on October 26, 2022 at the Great Blue Heron Casino in Port Perry. The claim was based on a breach of an oral contract, breach of trust and/or unjust enrichment.

[2] Before deciding the matter, I required the parties to provide me with their claim for costs, if successful. The plaintiff's bill of costs set out a claim for $36,421.50 for partial indemnity fees, plus HST $4,734.80 and disbursement of $2,431.20 (inclusive of HST), for a total of $43,587.50. The defendant's costs outline set out partial indemnity fees of $45,261.85 plus HST ($5,840.69) and disbursements of $1,223.84 which totalled $52,326.38.

[3] I urged the parties to agree on costs. If not, they were given time deadlines for brief written submissions which I received on July 9 and August 8, 2025 as required.

Defendant's Costs Claim

[4] The successful defendant's written submissions sought increased substantial indemnity costs totalling $79,750.65 consisting of:

a) 1.5 times the partial indemnity fees;

b) $5,642.94 for transcripts purchased January 31, 2024 (the penultimate day of trial); and

c) $1,130 (inclusive of HST) for preparation of costs submissions.

[5] As counsel for the defendant noted, this exceeds the monetary limit of $50,000 for fees under Rule 76.12.1(1) but appears to be within my discretion under Rule 76.12.1(6).

[6] Counsel for the defendant relied on the following submissions to support its claim:

a) an offer to settle made on April 6, 2023 proposing a discontinuance of the action plus payment of "my client's full legal costs, which at this point stands at $13,648.92";

b) the docketed hours of each counsel are similar, the defendant at 132.16 and the plaintiff at 154 hours with the higher amount claimed by the defendant as a result of the higher hourly rate of counsel for the defendant;

c) a telephone voice mail to the defendant by a brother to the litigants, Shawn Pelley (who testified on behalf of the plaintiff at the trial) expressing his disagreement with the trial result and requesting the defendant not proceed with requesting payment of legal costs in a manner plaintiff's counsel admits "was aggressive in tone, and contained colourful language" but not "physically" threatening the defendant within an hour of a discussion between counsel as to an amount which would settle the issue of costs.

Plaintiff's Position on Costs

[7] The plaintiff's position was that the award of costs to the plaintiff should be reduced to $25,000, all inclusive, and relied on the following submissions:

a) costs in the simplified procedure and summary trials should be significantly lower than what would occur under the ordinary procedure;

b) the overriding principle is of reasonableness and the defendant's claim far exceeds same;

c) no consideration should be given to the April 6, 2023 settlement proposal given it failed to indicate any compromise by the defendant and same should not be encouraged;

d) the 23 pages of time docketed appended to the defendant's costs submissions (not requested by me) contained both trial preparation and attending at trial time in addition to a $4,500 per day block fee for days of trial indicating duplication; and

e) the use of two counsel at the trial was not reasonable.

Analysis

Offer to Settle

[8] Regarding the Offer to Settle of April 6, 2023, I agree it does not persuade me to apply the costs consequences of Rule 49. I find it lacked any compromise that Rule 49 was intended to foster. In this regard, the defendant relied on the decision of Leffen et al. v. Zellers Inc., [1986] O.J. No. 2567. I note that decision (at paragraphs 17 and 18) reviews Rule 49.06(2) which prohibits the disclosure of such offers before or until "all questions of liability and the relief to be granted, other than costs, have been determined". The policy interest to be fostered is "if an action has been commenced" the parties being "encouraged to effect a compromise without resort to trial". That is not what this offer represented in any form.

Docketed Hours and Counsel Fees

[9] Regarding the similarity of docketed hours, I agree with counsel for the plaintiff's submission that the use of two counsel, the senior of whom apparently charged at $600 to $750 per hour during the course of action to be excessive for the subject matter of this claim. The claim rose and fell on the communication between the two litigants and as was demonstrated in their text exchanges as to the terms of any jack pot agreement.

[10] Litigants are at liberty to retain and pay for whomever and how much legal talent they choose. However, it cannot be with the expectation that it will be blindly allowed if successful. The guiding principle is that contained in Boucher et al. v. Public Accountants Council for the Province of Ontario et al., [2004] O.J. No. 2634 which states "the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in a particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant" (at paragraph 26).

[11] Recently, the Court of Appeal in 100 Bloor Street West Corporation v. Barry's Bootcamp Canada Inc., 2025 ONCA 447 (at paragraph 71) referenced another portion of the Boucher et al. v. Public Accountants Council for the Province of Ontario et al., supra decision (at paragraph 37) in addressing elevated awards of costs. It stated its concern for "the chilling effect of litigation that this kind of award could have".

Conduct Issues

[12] Regarding the conduct of Shawn Pelley, I note none of the specific comments relied on indicate or suggests that the plaintiff requested, encouraged or even suggested he leave the voice mail. However, this matter was the subject of a rare endorsement before trial by Justice Morgan, November 24, 2024 where it was considered necessary that he put in writing "with a family dispute of this nature", and "witnesses should not feel harassed or put off when testifying, even if that is not the intent of someone reaching out to speak with them. Here, where each side has sworn affidavits from each of the witnesses, there is really no reason to have to speak with them prior to trial. I recommend that everyone refrain from doing so".

[13] Counsel relied on the decision in R & P Petroleum Inc. v. Eternal Vibes Inc., 2025 ONSC 2906 where the learned trial judge concluded the named defendant was the author of "malicious, venomous communications (at paragraph 32) which required reporting to Waterloo Police Services. Further, as stated in that decision, conduct of that nature "has no place in the justice system" (at paragraph 32) and will not be ignored. I accept Shawn Pelley was made aware of Justice Morgan's endorsement and chose to ignore it. Regrettably for the plaintiff, this factors into my determination of the appropriate costs award that should be made. Without such conduct, I would have been inclined to accede to the plaintiff's position on quantum.

Transcript Costs

[14] Regarding a request for payment of the transcript purchased on January 31, 2025 in the amount of $5,642.92, they were utilized in the defendant's written submissions (and not in the plaintiff's written submissions). Unfortunately, I was not advised they had been ordered or produced nor was I provided a copy. Counsel for the plaintiff points to a letter from counsel for the defendant describing an agreement to split the cost of the transcripts and requesting payment of one half. Counsel for the plaintiff denies such an agreement existed. This disbursement was not included or mentioned that it was pending in the Costs Outline provided to me at the end of the trial. To that end, I will not include same in the amount of costs to be fixed by me.

Costs Award

[15] I do not propose to do a line by line review of the defendant's Costs Outline and time dockets nor do I believe the law requires me to do so. Given the circumstances reviewed above and mindful of the factors identified in Rule 57.01, I award the defendant costs fixed in the amount of $35,000 for fees, plus HST in the amount of $4,550 and disbursements (including HST) of $1,223.84 for a total award of $40,773.84, payable by the plaintiff, forthwith.

Mr. Justice G. Dow

Released: September 18, 2025