COURT FILE NO.: DC-06-375
DATE: 20071004
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
STEVEN M. BOOKMAN and GILLIAN BOOKMAN
Steven Bookman, counsel on behalf of the Plaintiffs/Respondents in Appeal
Plaintiffs/Respondents in Appeal
- and -
U-HAUL CO. (CANADA) LTD.
Bruce Cook, counsel on behalf of the Defendant/Appellant
Defendant/Appellant
HEARD: Written Submissions
FEDAK J.
[1] The appellant, U-Haul Co. (Canada) Ltd., seeks costs in the amount of $11,347.53 as set out in its Bill of Costs.
[2] The respondents take the position that since success in the appeal was divided, there should be no order as to costs.
[3] Section 131 of the Courts of Justice Act provides that costs of a proceeding are in the discretion of the court and the court may determine by whom and to what extent the costs shall be paid.
[4] In exercising its discretion under s. 131 of the Courts of Justice Act, the court is required to consider the various factors set out in rule 57.01(1) of the Rules of Civil Procedure.
[5] At the trial of the first instance, the plaintiffs claimed $10,000.00 for damages to property and breach of contract together with costs of the action.
[6] The Deputy Trial Judge awarded $8,696.62 at trial. The appellant was successful on appeal to reduce damages to $4,951.18. The total amount of the judgment was less than the appellant’s offer to settle for $7,500.00 all inclusive.
[7] The proceedings in this matter were not complex.
[8] The appeal involved important issues of basic contract law as well as fundamental principles of damages.
[9] The appellant attempted to resolve the matter subsequent to the trial and before filing the Notice of Appeal by serving an Offer to Settle. However, the respondents refused to concede the error at trial and maintained their position with respect to depreciation and the contract price.
[10] The proceedings in this matter were complicated by a motion brought by the respondents to dismiss the appellant’s appeal as being out of time to perfect the appeal. This motion was brought prematurely as the appellant was within the time prescribed by the Rules of Civil Procedure. The appellant was, as a result, required to research the issue and had to begin preparation of responding material before the respondents agreed to withdraw their motion.
[11] At the appeal, the respondents refused to admit that Deputy Judge Cimba’s award at trial was $8,696.62. The respondents submitted that the award was for $10,000.00 and therefore this matter had to be addressed by the appellant at the appeal.
[12] Bruce A. Cook is an associate with Hughes, Amys LLP. He was called to the bar in 2000. Kimberly A. Jossul is an associate with Hughes, Amys LLP. She assisted Mr. Cook with the preparation of the materials and throughout the course of the appeal preparation. She was called to the bar in 2006.
[13] Mr. Cook claims he spent 22.2 hours at the rate of $205.00 per hour. Ms. Jossul claims she spent 26.9 hours at $145.00 per hour.
[14] The appellant offered to settle this matter for $7,500.00 inclusive of damages, costs and interest. The respondents refused this offer.
[15] On appeal, the damages award was reduced to $4,951.18 plus the original costs award of $750.00 and $259.84 for a total of $5,961.02. Accordingly, the award at appeal was less than the Offer to Settle made by the appellant by $1,538.98.
[16] On this basis the appellant would be entitled to substantial indemnity costs from December 11, 2006 to date of the appeal on September 10, 2007.
[17] The Bill of Costs presented by the appellant follows a mechanical calculation of hours at the rate the lawyers might be entitled to.
[18] The Court of appeal in Boucher v. Public Accountants Council for the Province of Ontario (2004) 2004 14579 (ON CA), 71 O.R. (3d) 291, and re-affirmed in subsequent cases such as Moon v. Sher (2004), D.L.R. (4th) 440, found fault with the mechanical calculation.
[19] The Court of Appeal recognized that the mechanical approach is just one of the factors to be considered under Rule 57. The overriding principle which the court must consider is that the result must be fair, reasonable and within the reasonable expectation of the parties.
[20] Considering the factors discussed above, this Court finds that a fair and reasonable amount within reasonable expectations of the parties would be $5,000.00 plus disbursements and G.S.T.
FEDAK J.
Released: October 4, 2007
COURT FILE NO.: DC-06-375
DATE: 20071004
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
STEVEN M. BOOKMAN and GILLIAN BOOKMAN
Plaintiffs/Respondents in Appeal
- and –
U-HAUL CO. (CANADA) LTD
Defendant/Appellant
REASONS FOR JUDGMENT - COSTS
FEDAK J.
EF/sh
Released: October 4, 2007