COURT FILE NO.: 499/06

05-CV-292577 PD2

DATE: 2007-12-04

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Yonge Village Recreation Centre Limited Plaintiff, Respondent;

-and-

York Condominium Corporation No. 201 Defendant, Appellant

HEARD: At Toronto, March 27, 2007; costs submissions in writing September – October, 2007;

BEFORE: Lane, Matlow* and Linhares De Sousa JJ.

COUNSEL: A. S. Halpert, for the Appellant;

P.M. Conway, for the Respondent

E N D O R S E M E N T A S T O C O S T S

[1] On September 5, 2007, we released reasons dismissing the appellant’s appeal and requiring costs submissions in writing. The respondent submits that it should have its costs of the motion for leave to appeal before Stinson J. and of the appeal on a partial indemnity basis. The appellant concedes that partial indemnity costs are in order but objects to some specific features of the Bill of Costs.

[2] The respondent seeks $13,395 for fees and $559.58 for disbursements in the Revised Bill of Costs. The appellant submits that a reasonable amount for fees would be $8,000 and that the only disbursements allowable total $285. The differences between them as to fees are as to the hourly rates for students ($100 charged versus $50) and for Ms. Conway ($350 versus $275).

[3] The respondent asserts that the case was one of great significance for it as the alleged settlement was for a small amount relative to the on-going costs of maintenance of the facility in question. That is no doubt true, but does not by itself call for an award beyond the normal partial indemnity costs range. Nor do we think that the appellant’s attack on the witness Tspeniuk is such a basis.

[4] The dockets submitted show that until November 1, 2006, Ms. Conway’s time was entered at $350/hr and thereafter at $425/hr. and that these were the amounts billed. That being so, the partial indemnity costs rate must be significantly lower and we accept the submission of Mr. Halpert that $275/hr is a reasonable rate for a senior counsel in a matter such as this on the partial indemnity costs basis. An appropriate student rate would be $60/hr. Revising the Bill accordingly, the fee total becomes $9600.

[5] As to the disbursements, the appellant contended that many of the disbursements were not allowable. The revised disbursements include courier services to deliver documents; copying, binding and tabbing (not objected to) and Quicklaw. In our view, courier services and Quicklaw fall within Tariff item 35 as “reasonably necessary for the conduct of the proceeding” and so are allowed. The disbursements are allowed at the $559.58 claimed.

[6] Finally, we ask the question: At the end of the day, what is the total for fees and disbursements that would be a fair and reasonable amount to be paid by the unsuccessful parties in the particular circumstances of this case?[^1] The award does not necessarily equal the sum of the parts; an overall sense of what is reasonable should be factored in to determine the ultimate award.

[7] Considering the financial implications of the case for both parties, the success of the respondent, the general level of costs in the Divisional Court and the considerations reviewed above, the costs are fixed at $9,500 inclusive of disbursements but plus applicable GST.

Lane J.

Linhares De Sousa J.

DATE: December 4, 2007

• By direction of the Chief Justice, Matlow J. took no part in the preparation of these reasons.

[^1]: See Murano v. Bank of Montreal (1998) 1998 5633 (ON CA), 41 O.R. (3rd) 222, at page 247; Zesta Engineering Ltd. v. Cloutier, Ont. C.A. Nov. 27, 2002; Boucher v Public Accountants Council (Ontario) (2004) 71 0.R. (3rd) 291 (C.A.)