Ontario Superior Court of Justice

Court File No.: CV-22-30694
Date: 2025-01-07

Parties

Between:
Dennis Paul Rivest, Plaintiff
– and –
Nancy Flagler-Wilburn, F.R. Jordan & Associates Appraisal and Management Services (1977) Inc., Julie Bondy, Manor Windsor Realty Ltd., Karen Ann Rivest, Defendants

Appearances:
Harvey T. Strosberg, K.C. and William V. Sasso, for the Plaintiff
Pino J. Cianfarani and Michael Dunk, for the Defendants, Nancy Flagler-Wilburn, and F.R. Jordan & Associates Appraisal and Management Services (1977) Inc.

Heard: In Chambers

Reasons for Costs on Summary Judgment Motion

Bezaire J.

Background

[1] In my endorsement dated September 16, 2024, I granted the defendants, Nancy Flagler-Wilburn, F.R. Jordan & Associates Appraisal and Management Services (1977) Inc. (the “Moving Defendants”) motion for summary judgment, thereby dismissing all claims against them.

[2] The Moving Defendants and the plaintiff have now provided costs submissions.

Submissions on Costs

[3] Because the Moving Defendants were wholly successful on the motion, they are presumptively entitled to costs. They seek partial indemnity costs of $50,314.08. This sum is broken down as follows:

• partial indemnity costs of the motion: $27,918.28
• counsel’s attendance at the motion: $3,450.00
• partial indemnity costs of the action: $18,945.80

[4] The plaintiff accepts that the Moving Defendants are entitled to costs, but submits that they be fixed at $29,000, being $20,000 for their costs of the motion and $9,000 for their costs of the action. Curative steps were required because the Moving Defendants failed to plead witness immunity. The time associated with these curative steps should be deducted from any costs award. The plaintiff estimates the curative steps to be 40 percent of the Moving Defendants' claimed costs.

[5] The Moving Defendants disagree. While they did not plead witness immunity, they did raise it throughout this motion. The adjournment and curative steps were necessitated by the plaintiff’s insistence that they amend their pleadings. Further, there is no evidentiary basis for the plaintiff’s 40 percent estimate. They submit that it is inflated, no such reduction would apply to the costs of the action, and the costs incurred by the Moving Defendants during the adjournment period are far less than 40 percent of the total costs incurred.

[6] No offers to settle the motion have been provided. The Moving Defendants provided their offer to settle the costs issue. This offer and the related email correspondence represent post-motion privileged communications regarding costs. It is improper for these communications to be appended to, or detailed at page 4 of, the costs submissions and they have been struck.

Analysis

[7] In considering the factors at r. 57.01, I find as follows:

• Three counsel worked on this matter for the plaintiff. With respect to the rates charged, I am unclear why Mr. Dunk, who was called in 2021, would charge a higher rate than Ms. Jockwig-Welsh, who was called in 2020. No explanation was provided. Further, I am unclear why two counsel (Mr. Cianfarani and Mr. Dunk) would charge 10 hours each for their appearance on the motion. The motion was not ten hours in length and did not require the attendance of two counsel.

• The plaintiff did not make specific submissions regarding what was reasonably expected but does seek to limit the Moving Defendants' costs to the all-inclusive sum of $29,000.

I agree with the Moving Defendants that the plaintiff ought reasonably to have expected to be exposed to significant costs. This action proceeded through the pleadings and discovery stage and significant materials were filed on the motion.

The plaintiff did not provide his own costs outline or bill of costs, leaving the court to infer that the costs he incurred were equal to or greater than the costs incurred by the Moving Defendants.

• In addition to declaratory relief claimed, the plaintiff seeks damages in excess of $1,000,000.
• The plaintiff’s claim as against the Moving Defendants was wholly dismissed.
• I agree with the Moving Defendants that the claim was of moderate complexity.
• The proceeding was important to both parties. For the Moving Defendants, their professional conduct was being called into question and for the plaintiff, significant compensation was requested.
• (e)-(h.1) N/A
• The plaintiff provided two separate costs outlines – one for their costs of the motion and one for their costs of the action. The disbursement list attached to both is almost identical. The plaintiff ought not to pay for these disbursements twice.

I find there to be some validity to the plaintiff’s argument relating to the costs of the curative steps. Witness immunity should have been pled in the first instance. The Moving Defendants are responsible for their failure in this respect, including the costs to cure the defect.

I do not, however, accept the plaintiff’s estimate of 40 percent for the curative steps. It is not based on any evidentiary foundation. Further, I find there to be some validity to the Moving Defendants' argument that the plaintiff’s insistence on certain steps unnecessarily caused them to incur increased costs. The plaintiff insisted on the adjournment, insisted the Moving Defendants file an amended pleading and insisted on an order permitting longer facta, yet the plaintiff never delivered an amended factum. The deficiency in the Moving Defendants' pleadings could have been resolved in a much less costly manner.

Disposition

[8] In consideration of the applicable rules and factors set out above, I exercise my discretion to award costs to the Moving Defendants payable by the plaintiff within 30 days, fixed at $40,945.80, inclusive of fees, disbursements and H.S.T. This sum is broken down as follows:

• partial indemnity costs of the motion in the amount of $20,000.00;
• partial indemnity costs for counsel’s appearance on the motion in the amount of $2,000.00; and
• partial indemnity costs of the action and disbursements in the amount of $18,945.80.

Jennifer E. Bezaire

Released: January 7, 2025