COURT FILE NO.: Div. Ct. 584/03
03-CV-247728CM2
DATE: 20040112
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jane Doe, Plaintiff;
-and-
Kelvim Jose Escobar, Defendant.
HEARD: November 19, 2003; Submissions as to Costs in writing.
BEFORE: Lane J.
COUNSEL: William Burden, for the Defendant, moving;
Richard Auger, for the Plaintiff, responding.
E N D O R S E M E N T ( C O S T S )
[1] On November 19, 2003, I dismissed the defendant’s motion for leave to appeal from the orders of Trafford J. permitting the plaintiff to continue to use the pseudonym Jane Doe in these proceedings and awarding her $19,500 in costs. Written submissions as to the costs of the motion for leave have now been received. Costs on the partial indemnity scale will follow the event.
[2] The plaintiff has submitted a Bill on the partial indemnity costs basis for $10,998 plus disbursements. The defendant submits that costs should be fixed at no more than $2500, plus disbursements and GST. He submits that the involvement of very senior counsel in an advisory capacity is not something the defendant should pay for; that the maximum rates are claimed and are not appropriate; and that the hours are excessive.
[3] Four lawyers docketed time on the motion. Two, Messrs E. Greenspan and H. Strosberg are very senior and experienced counsel. Mr. Greenspan docketed 2.1 hours and Mr. Strosberg 0.9 hours, both at the maximum hourly rate, for consultations. Neither appeared at the hearing. Mr. Auger, who appeared, and Ms. Horvat, who did much of the research and drafting, are lawyers of under ten years experience and docketed at their maximum rates. While extensive involvement of very senior counsel may qualify as ‘overkill’, the relatively modest consultations with Messrs. Greenspan and Strosberg are not clearly out of line and I will not second-guess their involvement. The use of the maximum rates is not appropriate in this case, even for the most senior counsel. The top rate is reserved for the most experienced lawyer acting in the most important and difficult case.[^1] Messrs. Greenspan and Strosberg are those lawyers, but this is not that kind of case. Mr. Auger (1997 call) and Ms. Horvat (2002 call) are not the most experienced lawyers in their experience range. I think that fair rates for a motion involving leave to appeal on these issues are $250 for the consultations with senior counsel, $150 for Mr. Auger and $125 for Ms. Horvat. The time for the actual hearing was just over one hour, so the half day rate is not appropriate and I fix the counsel fee at $500. Apart from that adjustment, I do not propose to adjust the time involved. It is considerable, bearing in mind that much of the Factum would echo that before Trafford J., but much of it was done at the rate of the most junior lawyer on the case and more time can be expected to be required.
[4] These rates bring the Bill to approximately $5500 in fees. A claim is made for an additional $1380 for preparing the Bill of Costs. Large portions of this is a largely mechanical exercise which should have been done by a clerk/student. I will allow $500.
[5] Finally, I ask the question: At the end of the day, is the total for fees and disbursements a fair and reasonable amount to be paid by the unsuccessful parties in the particular circumstances of this case?[^2] The award does not necessarily equal the sum of the parts; an overall sense of what is reasonable should be factored in to determine the ultimate award. In my view, the sum of $6,000 plus disbursements is within the range that should be expected as the costs of a one-hour motion for leave on a straightforward point largely echoing the arguments already prepared for and made in the court below.
[6] The partial indemnity costs of the successful plaintiff are fixed at $6,000, plus disbursements as claimed and GST.
Lane J.
DATE: January 12, 2004
[^1]: Pagnotta v. Brown [2002] O.J. No. 3033 (S.C.J.); TransCanada Pipelines v. Potter Station Power Ltd. Partnership [2002] O.J. No. 1638; 20 C.P.C. (5th) 382 (S.C.J.) and generally: Hanuka and Morton; Computation of Costs Awards: (2003) 27 Advocates’ Quarterly 231.
[^2]: See Murano v. Bank of Montreal (1998) 1998 5633 (ON CA), 41 O.R. (3rd) 222, at page 247; and Zesta Engineering Ltd. v. Cloutier, Ont. C.A. Nov. 27, 2002.