COURT FILE NO.: 417/04

DATE: 20050224

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Corinne Cumming et al., Plaintiffs, (Appellants)

-and-

Sheldon DeSouza et al., Defendants (Respondents)

HEARD: January 10, 2005; Submissions as to costs February 11 and 14, 2005.

BEFORE: Lane, J.

COUNSEL: David M Golden, for the Appellants;

Martin Sclisizzi, for the Respondent Canada Post Corporation.

E N D O R S E M E N T

[1] On January 13, 2005, I released reasons allowing the appeal of the plaintiffs from the Order of Master Dash dismissing the plaintiffs’ motion for leave to add Canada Post Corporation as a the defendant to the action. The learned Master dismissed the motion on the ground that the proposed amendment disclosed no cause of action against Canada Post. I allowed the appeal, permitted the amendment and ordered costs of both the motion and the appeal to be paid by Canada Post. I have now received submissions as to costs.

[2] Before Master Dash, the parties agreed that $5,000 was a suitable figure for costs and the Master awarded that amount. I agree that this amount should not be disturbed, but it will now be paid by, rather than to, Canada Post.

[3] The appellants ask for costs of the appeal on a partial indemnity basis in the amount of $16,073.36. Canada Post submits that there was little difference between the motion and the appeal, only one additional case having been found, and that $5,000 would also be a suitable award for the appeal. The appellants disagree, pointing to many hours of research, some by a student whose time has not been included in the Bill, seeking to find analogous cases in Canada and other common-law jurisdictions; the involvement of more senior counsel in the appeal, and the omission from the Bill of time spent by Ms. Corrente in tasks considered to duplicate the work done by her in preparation for the motion.

[4] A review of the Bill reveals that the hourly rates for Mr. Golden and Mr. Embury are at the maximum level for their respective years of experience. These maximum rates are intended for the maximum case, not for every case. This is not a maximum case and the fees must be reduced. Although the Rules permit a fee for a second counsel in a suitable case, I see no rationale for a second counsel in a case such as this. The preparation time already reflects the cost of Mr. Golden getting up to speed. The additional presence of Ms. Corrente, who had appeared before the Master, seems therefore a bit of a luxury, no doubt useful for her education and justifiable on a solicitor-client basis, but not something for which the respondent ought to pay.

[5] I must also consider whether the amount is a fair and reasonable amount to expect the losing party to pay, as directed by the Court of Appeal in Boucher et al. v. Public Accountants Council for the Province of Ontario et al. (2004) 71 O.R. (2nd) 291 (C.A.). Canada Post’s submission that there should be no difference between the motion and the appeal is not persuasive; it overlooks the different level of counsel and also the difference in intensity, particularly of preparation, at the appeal level.

[6] In the result, I fix the costs of the appeal of the plaintiffs at $8,750 plus disbursements as claimed of $2,367.39.

Lane, J.

DATE: February 24, 2005.