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.

1The appellant, U-Haul Co. (Canada) Ltd., seeks costs in the amount of $11,347.53 as set out in its Bill of Costs.

2The respondents take the position that since success in the appeal was divided, there should be no order as to costs.

3Section 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.

4In 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.

5At 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.

6The 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.

7The proceedings in this matter were not complex.

8The appeal involved important issues of basic contract law as well as fundamental principles of damages.

9The 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.

10The 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.

11At 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.

12Bruce 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.

13Mr. 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.

14The appellant offered to settle this matter for $7,500.00 inclusive of damages, costs and interest. The respondents refused this offer.

15On 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.

16On this basis the appellant would be entitled to substantial indemnity costs from December 11, 2006 to date of the appeal on September 10, 2007.

17The Bill of Costs presented by the appellant follows a mechanical calculation of hours at the rate the lawyers might be entitled to.

18The 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.

19The 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.

20Considering 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.