COURT FILE NO.: 131/05 (Div.Ct.)
DATE: 20070820
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: First Place Fine Car Sales Inc. and Dominic Cerullo,
(Applicants) Appellants
-and-
Registrar, Motor Vehicle Dealers Act
Respondent
HEARD: February 9, 2007: Costs submissions in writing April 9, 24, June 4, 2007.
BEFORE: Lane, Matlow* and Pardu, JJ.
COUNSEL: Benjamin Salsberg, for the Appellants;
A. Michael Rothe, for the Respondent.
R E A S O N S F O R J U D G M E N T (C OS T S)
[1] On March 2, we released reasons allowing the appeal of Dominic Cerullo with costs to be the subject of written submissions. The appeal of the corporate appellant was withdrawn during argument. We have now considered the costs submissions of the parties.
[2] The appellant submits that he was successful on the very point that was put forward: that the Tribunal asked itself the wrong question and therefore applied the wrong legal test. That was indeed what we found and so allowed the appeal.
[3] However, the respondent submits that it conceded this point and submitted that even so, the Tribunal arrived at the correct result. Therefore it had asked that the appeal be dismissed. In our reasons we declined to accept this submission and remitted the case for a hearing by a new Tribunal. Our reasoning was that the Legislature has conferred the jurisdiction to decide the facts and the suitability of the applicant and the registrant on the Tribunal and not on us. Thus they must be the judges of what the facts show when approached with the proper principles in mind.
[4] Certainly the concession of the main legal issue saved some time, but the re-focusing of the case on the remaining issue meant that the appeal had to go forward. As the facts were central to the second issue, I cannot be critical of the claim for the cost of the transcript even though it may well be the case that it was not referred to because of the attitude we took to that point. In short, the concession made by the respondent was of limited value in shortening the hearing or the preparation.
[5] The case was of importance to the appellant Cerullo as it involved his livelihood, a matter upon which he would reasonably be expected to expend significant funds and obtain, as he did, a senior and experienced counsel (24 years). In my view, the non-profit nature and administrative responsibilities of the respondent Council, while not irrelevant, do not carry much weight when it is litigating to remove a registrant’s licence to practice in his chosen field.
[6] The appellant seeks partial indemnity costs in the amount of $6375 for fees (21.25 hours @$300) plus disbursements of $4733 for a total of $11,491 including G.S.T. The respondent submits that $3,500 would be reasonable “inclusive of disbursements and G.S.T.” Given that the disbursements exceed the total suggested by the respondent, it is clear that the respondent assumes that the transcript ($3,209) will be disallowed. As noted above, I am of the view that, in the light of the respondent’s position that the decision was not a miscarriage of justice despite the use of the wrong legal test, the facts were of importance and the transcript cost is allowed.
[7] Mr. Salsberg is an experienced counsel who charges $425/hr. but claims at $300. I think that the respondent has a point when it submits that the proportion (70% approx.) is nearer to the substantial indemnity costs level. The respondent complains of the hours charged and that none were delegated to a person at a lower rate. Mr. Salsberg states that he has no junior and the rate is in any event partially offset by his greater efficiency and experience. The waiting time in court was partly used in further review and preparation. On the whole, the hours are not unreasonable, although a bit high perhaps; the rate needs adjustment downwards and the disbursements are OK, although the cost of service on the respondent is outrageous, but the outrage must be directed at the courier and not at Mr. Salsberg.
[8] 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?[^1] This is the major guiding principle in the fixing of costs, as reiterated by Borins J.A. for the Court of Appeal in Moon[^2] where he observed that the case law established that such an award must:
…reflect “more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant”. This is a fundamental concept in fixing or assessing costs.
[9] Borins J.A. went on to observe that such an amount is not arrived at arithmetically, but by determining what is fair and predictable. The paying party must not be faced with an award that does not reasonably reflect the amount of time and effort that was warranted by the proceedings.
[10] In my view, a reduction in the fees to $5,300 together with the disbursements as claimed meets the principles outlined above. I would award $9,733.86 plus G.S.T. as applicable.
Lane J.
Pardu J.
DATE: August 20, 2007
- By direction of the chief Justice, Matlow J. took no part in this decision.
[^1]: 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.
[^2]: Moon v. Sher (2004) 2004 39005 (ON CA), 246 D.L.R. (4th) 440, at para. 30 (Ont. C.A.)