COURT FILE NO.: 716/03 715/03
DATE: 20050408
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Amita Kent, Plaintiff; Respondent
-and-
Conquest Vacations Company, Defendant, Appellant
AND RE: Rohit Kent Plaintiff, Respondent
-and-
Conquest Vacation Company Defendant, Appellant
HEARD: January 12, 2005; written costs submissions, 1, 15 and 31 March.
BEFORE: Lane, J.
COUNSEL: Christopher Ashby, for the Appellant Andrew Reddon, for the Respondents.
E N D O R S E M E N T A S T O C O S T S
[1] On February 1, 2005, I released reasons dismissing the defendant, appellant’s appeals in each of these two actions, heard together. Submissions as to costs have now been received and considered.
[2] The respondents seek partial indemnity costs of $7,000 in each of the two appeals; the appellant proposes $6,000 for the two combined, inclusive of disbursements and tax.
[3] The respondent has filed identical partial indemnity Bills of Costs in each appeal, simply dividing the total docket by two, in the amount of $4,768.04, made up of $3,763 for fees, $693.12 for disbursements and $311.92 in tax. No issue is taken with the disbursements. The hours were 52 student hours, 6 partner hours spent in preparation and 4.2 associate hours spent supervising and reviewing students. Counsel for the appellant submits that these hours are very high for what was really one appeal.
[4] I have some concerns as to the reasonableness of these hours. There were only minor differences in the positions of husband and wife, arising largely from the fact that only the wife gave evidence. The major point was a legal one: had the plaintiffs split one case into two to avoid the limit on claims in the Small Claims Court, or were they two parties with separate causes of action? The factums could easily have been actually combined into one, so even the time spent on preparing duplicate materials could have been avoided. However, I am not prepared to second-guess the decision not to combine all the materials. I think the time spent in total was on the high side, but the bulk of the time was student time at a low rate and students by definition take longer than experienced lawyers to do things.
[5] The respondents seek a premium over the docket amount of their costs for two reasons. First, they submit that the appellant admitted that it had made a mistake and offered utterly inadequate amends at the outset, yet it defended the claims on the merits throughout, but did not press the liability defence at the appeal. The admission of error should have led to a narrowing of the issues to just the legal point and so reduced the costs of the respondents. Second, the respondents say that there are policy considerations, which should lead to an increase in the costs payable by the appellant, albeit the respondents do not seek substantial indemnity costs. They submit that many of the travellers who deal with tour companies are people of modest means who are not in a position to pursue this sort of claim as the respondents were, largely due to the fact the one of the respondents is a lawyer. They observe that it cannot be coincidence that the plaintiffs in the other reported cases of this kind of claim were all lawyers. They also refer to Dube v. Penlon (1992) 1992 7449 (ON CA), 10 O.R. (3rd) 190 (O.C.G.D.) where Zuber J. awarded substantial indemnity costs[^1] because it should have been obvious that the plaintiff, injured by an overdose of anaesthetic, was blameless and so bound to succeed, yet was put to the proof of the entire case. The judge held that substantial indemnity costs were necessary to do justice.
[6] The appellant submits that the jurisdiction point and the issue of whether there was sufficient evidence to support the award of damages, especially those of the husband, were genuine issues and that there was no reason to depart from the usual practice as to costs.
[7] I do not think that this case is similar to Dube. There were genuine issues as to the scale of liability here, given that the claims advanced exceeded the court’s jurisdiction unless there were properly two causes of action. The appellant was entitled to have that issue decided, and it occupied the bulk of the court’s time. So far as a premium based on policy considerations is concerned, I think there is a distinction between the policy considerations that lead to a premium and those that lead to substantial indemnity costs, although there is certainly some overlap. Essentially, a premium is earned by the successful party for extraordinary success or extraordinary risk assumed, in the interest of permitting access to justice by a party otherwise unlikely to be able to pursue the claim. Substantial indemnity costs are usually triggered by the conduct of the opposite party. In the present case I do not think that the circumstances exist to support either type of additional costs award.
[8] The final step in fixing costs is to consider whether the sum to be awarded is a fair and reasonable one for the losing party to pay in all the above circumstances, and within the reasonable expectations of the parties as to the costs exposure likely to be involved in the case. I think that, these days, the parties to appeals such as these must expect costs in the general range of $3,000 to $5,000.
[9] For these reasons, I fix the costs of the respondents at $4500 for each appeal for a total of $9,000 all-in.
Lane, J.
DATE: April 8, 2005
[^1]: At the time known as solicitor and client costs.