2017 ONSC 6079, 2017 ONSC 6079

CITATION: Jon Jessie William Driscoll v. Driscoll et al., 2017 ONSC 6079 COURT FILE NO.: 14-30082 DATE: 2017/10/11 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) Jon Jessie William Driscoll Applicant – and – Caroline Driscoll, Deanna Fleck, and JeanGilbert Respondents ) ) ) ) ) ) ) ) )) ) ) )) Christopher A. Moore, for the Applicant Richard S. Nishimura and Douglas G. Menzies,for the Respondents ) HEARD: September 5, 2017 ENDORSEMENT AS TO costs o’bonsawin J. [1] The Respondents, Ms. Driscoll, Ms. Flack and Ms. Gilbert (“Driscoll et al.”) brought a motion for an Order requiring theApplicant, Mr.

Driscoll, to attend at an examination in aid of execution. I ordered Mr. Driscoll to attend at the examination and orderedthe production of certain documents. In my Endorsement, I invited the parties to make written costs submissions if they could not cometo an agreement on the issue of costs. The parties did not come to an agreement and provided me with their Submissions on Costs, CostsOutlines, and case law. This is my Endorsement on the issue of costs. [2] Driscoll et al. seek payment of costs from Mr. Driscoll on a substantial indemnity basis for the motion. Mr. Nishimura’s yearof call is 2004 and Mr.

Menzies is 1982. Driscoll et al. state that the full indemnity amount is $9,089.95 and the partial indemnity basisat 66% is $6,108.26. The amounts claimed include the preparation and attendance for the motion, the preparation and attendance at Mr.Menzies’ cross-examination. The amounts claimed appear to be reasonable with the exception of the preparation of the CostsSubmissions and the Bill of Costs and Mr. Menzies’ attendance at cross-examination. In McDonald v. Anishinabek Police Service, (ON SCDC), 83 O.R. (3d) 132, 276 D.L.R. (4th) 460 (Div.

Ct.), the Divisional Court concluded that it is not reasonable toaward costs for the preparation of the costs submission unless there are unusual circumstances related to the task. In this case, there areno unusual circumstances and Driscoll et al. cannot receive costs for the preparation of the Costs Submission and the Bill of Costs. [3] Mr. Driscoll argues that pursuant to the Factum provided by Driscoll et al., they sought significantly more than what Iordered. More particularly, they sought an order that all exhibits of Mr. Menzies’ cross-examination are inadmissible as evidence thatwas not granted.

A significant portion of the Factum and the authorities were devoted to this issue. [4] Mr. Driscoll submits that Driscoll et al. inappropriately included in their costs time spent by Mr. Menzies who was cross-examined. They rely on City Front Developments Inc. v. Toronto District School Board, 285 D.L.R. (4th) 187, (Ont.S.C.). In this matter, Belobaba J. concluded that City Front could not charge fees for the services for the lawyers that provided affidavitsor testified as witnesses. I agree and conclude that Mr.

Menzies cannot charge his time for the cross-examination that he attended as awitness. [5] Lastly, Mr. Driscoll argues that the overall costs being claimed are unreasonable given the relatively simple nature of thisproceeding.

[6] A successful party is presumptively entitled to costs in a reasonable amount (Boucher v. Public Accountants Council for theProvince of Ontario, 71 O.R. (3d) 291, (C.A.) [Boucher]). The amount awarded is intended to be fair and reasonablefor the unsuccessful party, but not fixed by the actual costs incurred by the successful party (Boucher, at paras. 24, 26). [7] The court has discretion to award costs pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and rule 57.01 ofthe Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (Goldman v. Weinberg, 2017 ONSC 4743, at para. 4 (citing Chandra v.

CBC, 2015ONSC 6519)). Rule 57.01(1) sets out a number of factors to be considered in determining costs. [8] Parties often argue that costs should follow the event. This was confirmed in Schreiber v. Mulroney, 160 A.C.W.S. (3d) 53, (Ont. S.C.), at para. 2. Substantial indemnity costs are the exception to the rule. [9] I have taken into consideration the factors in rule 57.01(1), for example, the matter was not complex, the issues wereimportant to Driscoll et al., and the conduct of the parties was not inappropriate. I have also considered the case law provided to me bythe parties.

Consequently, I exercise my discretion and award reasonable costs in the amount of $4,500.00 payable by Mr. Driscoll toDriscoll et al. within 30 days of this Endorsement. Justice M. O’Bonsawin Released: October 11, 2017 CITATION: Jon Jessie William Driscoll v. Driscoll et al. 2017 ONSC 6079 COURT FILE NO.: 14-30082 DATE: 2017/10/11 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: John Jessie William Driscoll Applicant – and – Caroline Driscoll, Deanna Fleck, and Jean Gilbert Respondents ENDORSEMENT AS TO COSTS O’Bonsawin J.

Released: October 11, 2017