COURT FILE NO.: 763/03
790/03
DATE: 20060406
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
o’driscoll, whAlEn AND molloy JJ.
B E T W E E N:
VERONICA GRAVESANDE
Appellant/Plaintiff
- and -
THE CORPORATION OF THE CITY OF TORONTO and the TORONTO TRANSIT COMMISSION
Respondents/Defendants
ENDORSEMENT AS TO COSTS
[1] Following a three (3) day non-jury trial at Toronto, the trial judge gave twenty (20) pages of oral reasons dismissing the Plaintiff’s slip and fall negligence action against the City, assessed the general damages at $20,000.00 with agreed special damages of $825.00. The trial judge fixed costs of the trial at $8,000.00, all inclusive.
[2] The Plaintiff appealed to the Divisional Court. At the conclusion of the argument on June 15, 2005, judgment was reserved. Counsel agreed that if there were no agreement as to costs after the release of the Court’s judgment, Counsel would file written submissions and costs would be fixed. On October 5, 2005, unanimous reasons were released dismissing the appeal. Subsequently, Counsel filed written submissions as to costs.
[3] Counsel for the City submits a draft Bill of Costs for the appeal seeking:
(a) Review and preparation of junior counsel (who was counsel at trial) of 10 hours at $200.00 per hour $ 2,000.00
(b) Review of senior counsel (who was not at the trial) of 15 hours at $300.00 per hour $ 4,500.00
(c) Counsel fee on appeal – one (1) day Senior counsel $ 3,500.00 Junior counsel $ 3,500.00
(d) Preparation of Bill of Costs $ 200.00
(e) G.S.T. $ 959.00
$14,659.00
[4] Counsel for the unsuccessful Appellant/Plaintiff submits that his client is impecunious and is unable to satisfy any costs award, that the time claimed for preparation is excessive, so too the claim of $3,500.00 for each of two (2) counsel for counsel fees on the appeal.
[5] Counsel for the Appellant/Plaintiff also points out that the assessed damages total less than $21,000.00 and the costs at trial were fixed at $8,000.00.
[6] Our task is to fix costs and in doing so to arrive at an amount that is fair and reasonable to the unsuccessful party, according to the principles set out in:
Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C. 43,
Rule 57.01 of the Rules of Civil Procedure, and
Boucher et al. v. Public Accountants Council for the Province of Ontario et al. (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.).
[7] It is not part of our mandate, nor relevant to the issue of costs, to consider the financial circumstances of the party who is ordered to pay costs. It will be noted that the trial judge dismissed the Appellant’s claim because he did not accept her version of events. Nevertheless, in the face of those findings of fact by the trial judge, she proceeded with the appeal.
[8] The factual and legal issues in this appeal were not complex. Counsel, who appeared at trial, claims for ten (10) hours of preparation and, although he made no oral submissions before us, a junior counsel fee of $3500.00 on the appeal. Senior counsel, who was not at the trial, claims fifteen (15) hours of preparation and a counsel fee of $3500 fee on the appeal. If the City elects to proceed with a senior and a junior counsel in the circumstances of this appeal, the opposite party should not be obliged to pay for the duplication that resulted.
[9] After considering all the submissions and the specific circumstances of this case, we fix costs at $8,500.00, all inclusive, payable, if demanded, within thirty (30) days of the date of this endorsement.
O’DRISCOLL J.
WHALEN J.
MOLLOY J.
Released: