COURT FILE NO.: 441/02 & 453/02
DATE: 20030319
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Trudy Jean Wamsley v. Robert Michael Moore and Mike Moore & Sons Construction Ltd.
BEFORE: Then, Ellen Macdonald, and Czutrin JJ.
COUNSEL: Michael S. O’Neill, for the Plaintiff
Albert D. Ferranti, for the Defendants
ENDORSEMENT RESPECTING COSTS
[1] We have now had written submissions on the matter of costs for Mr. O’Neill on behalf of Ms. Wamsley and from Mr. Ferranti on behalf of the defendants/appellants, Robert Michael Moore and Mike Moore & Sons Construction Ltd. Our reasons for judgment were released on December 13, 2002. Ms. Wamsley was successful on her appeal. She now seeks costs, as set out in the draft bill of costs provided by Mr. O’Neill, in the total amount of $17,603.93 on a partial indemnity basis. This includes fees at $14,269.30, applicable GST at $998.85, and total disbursements of $2,335.78.
[2] The parties’ offers of settlement are also contained in the parties’ written submissions.
[3] Rather than paraphrase Ms. Wamsley’s position, we repeat paragraphs 1, 2, 3, 4, & 5 contained in the submissions of Mr. O’Neill.
The appeal of the Defendant therein originally filed questioned the Plaintiff’s entitlement to interim support and alleged that interim support was unnecessary in any event. The law as particularized in the Miglin decision and the nature of the Contract of Employment acknowledged the parties’ Separation Agreement was such that the Plaintiff’s entitlement to support was not a matter that ought to have been an issue appealed. The appeal of the Defendant husband on entitlement was dismissed without remark by the Plaintiff on the date of hearing at Divisional Court.
The cross appeal of the Plaintiff wife in respect to quantum was necessitated only as a result of the Defendant husband’s position that the question for support ought to have been reargued a second time before Justice Stortini. This arose as a result of an error occurring in the drafting of the original Employment contract prepared by the Defendant husband’s counsel. This was done even after the Defendant husband’s counsel had approved the order originally made with support being payable at $800.00 per week
The Plaintiff wife offered to settle this matter by reducing the support payment from $800.00 per week by the full amount of the UIC payment to the Plaintiff wife for the entire time of her entitlement. The offer of settlement dated April 25, 2002 is appended to this correspondence.
The Defendant has rejected this proposal and insisted that the Plaintiff wife was not entitled to any support on the basis that she should easily be able to obtain another position of employment as she had just left a position that had paid her more than $40,000.00 per year. It is the Plaintiff wife’s submission that this was a ridiculous position undertaken by the Defendant husband in that the only reason why she was making the money suggested and was in fact working at all was because the Defendant husband had provided this employment. The nature of the offer is such that costs might well be ordered on a substantial indemnity scale whereby the hourly rate of the Plaintiff wife’s solicitor should be fixed at $400.00 per house (being certified as a specialist in civil litigation with more than 20 years experience) and the rate of the solicitor Brian L. DeLorenzi at $250.00 (being a lawyer with less than 10 years experience.
The Bill of Costs (made on a partial indemnity scale) enclosed includes the provision for travel expenses necessitated by the Defendant husband’s appeal and for his request that the appeal could be heard more quickly in the Toronto Divisional Court rather than in Sudbury Divisional Court.
The suggested order for costs out to be in the conformity with the Bill of Costs enclosed totalling $17,603.93, including G.S.T. if costs are awarded only on a partial indemnity scale.
[4] In reply, Mr. Ferranti agrees that costs should be awarded on a partial indemnity scale. In early January 2003 Mr. Ferranti requested that Mr. O’Neill provide dockets to substantiate the hours detailed in the bill of costs. Mr. O’Neill refused to provide the dockets. In his detailed written submissions, Mr. Ferranti criticizes much of what is contained in Mr. O’Neill’s bill of costs on the basis that it is excessive. We agree. He submitted that bill of costs in favour of the wife be fixed at $4,355.00 inclusive of fees, GST, and disbursements. The order of Lang J. granting leave to appeal did not award costs to either party. Lang J. did not reserve the matter of costs on the leave application to this court.
[5] Having regard to all of the points raised by both Mr. O’Neill and Mr. Ferranti, we fix fees at $6,500.00 plus applicable GST. We disallow disbursements for the motion for leave to appeal.
[6] Without particulars of the travel expenses, we would arbitrarily reduce them to $850.00 recognizing that both parties were faced with travel expenses for the hearing of the appeal in Toronto. We therefore fix costs in favour of the wife at $6,500.00 for fees inclusive of applicable GST and $1,376.25 in disbursements, as follows:
File Appeal for Divisional Court $175.00
Travel Expenses 850.00
Long Distance Telephone 4.00
Photocopier 194.50
Facsimile 27.75
Quicklaw Research 125.00
Total $1376.25
Edward Then J.
Ellen Macdonald J.
George Czutrin J.
DATE:
COURT FILE NO.: 441/02 & 453/02
DATE: 20030319
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Trudy Jean Wamsley v. Robert Michael Moore and Mike Moore & Sons Construction Ltd.
BEFORE: Then, Ellen Macdonald, and Czutrin JJ.
COUNSEL: Michael S. O’Neill, for the Plaintiff
Albert D. Ferranti, for the Defendants
ENDORSEMENT RESPECTING COSTS