COURT FILE NO.: 328/08
DATE: 20081003
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
PAUL TIAGO and ANITA TIAGO
Plaintiffs
- and -
TINIMINT HOUSING NON-PROFIT INC., THE REGIONAL MUNICIPALITY OF PEEL, SAMUEL PROPERTY MANAGEMENT LTD., MARTA MUNOZ, BRUCE LAIRD, IAN LATIMER and SPEIGEL NICHOLS FOX LLP
Defendants
In Person
Alexandra L. White, for the Defendants, Tinimint Housing Non-Profit Inc., Marta Munoz and Bruce Laird
HEARD at Toronto: October 3, 2008
aston J.: (Orally)
[1] In this matter the plaintiffs brought a motion for leave to appeal an Order of Allen J., believing it at the time to be an interlocutory Order; thus the necessity of seeking leave. There was some issue raised subsequently as to whether the Order was in fact interlocutory or final. As a consequence of that the plaintiffs ultimately served a Notice of Abandonment of the Notice of Motion for Leave to Appeal.
[2] The respondents on the motion, the defendants in the proceeding, are presumptively entitled to costs when the Notice of Abandonment is delivered. There is no reason in this particular case to depart from that presumption. The fact that the plaintiffs were and are self-represented, at least since the Order of Allen J., is not in and of itself reason to depart from the general rule.
[3] The Notice of Abandonment was served by fax at 1:48 p.m. on August 11, 2008 for the motion which had been scheduled for August 14, 2008. It was known to the plaintiffs that the defendants were not going to consent to any further adjournment of the motion on the 14th of August. I find that it was legitimate for the solicitors for the defendants to be preparing their materials, and in fact serving and filing material, as if that motion were going to go ahead on the 14th, at least up until the time the Notice of Abandonment was formerly served on the law firm.
[4] It was, in my view, proper to be spending time on the matter up to that point in time. Having said that, I think that the quantum of costs that are being sought needs to be closely examined. This was a very simple matter when you get right down to it. There is nothing in my view that is novel in the issues that were raised by the Notice of Motion for Leave to Appeal.
[5] The test has been well described in jurisprudence. The facts in this particular case were not, for the purposes of the motion for leave to appeal, particularly complicated. I am also of the view that when lawyers or law students spend time on legal research, it is not something that necessarily should be passed on to the other side, certainly in whole or even in some circumstances in part. There are items that are just part of the cost of doing business. Some of those include photocopies and other things that are part of the overhead of the law firm and included in an hourly rate that is being charged by those who are billing out on an hourly basis.
[6] The other major consideration in the Bill of Costs like this is to look at it from the perspective of the reasonable expectations of the losing side. This was a threshold issue that didn’t necessarily determine the merits of the case, so the amount that is claimed in the case is not particularly determinative of the importance of the matters.
[7] Turning to the particular items in the costs outline - it is proper to include something for the preparation of the draft Order because the Order had to have been issued before the Notice of Motion for Leave to Appeal could be heard. On the correspondence, it is not clear to me how correspondence could possibly get up to $666.50 or could take 3.1 hours based on the material that I have reviewed in relation to the Notice of Motion for Leave to Appeal, but certainly something should be included for that. There is some duplication of time as between Mr. Heeney and Ms. White. I have to account for the fact that just because two people are working on it doesn’t mean that there isn’t some overlap in the time it’s being charged. Overlap, not just in the sense that the two of them conversing with one another within their law firm, but overlap in the sense of both of them essentially inventing the wheel for the first time themselves.
[8] I have already commented on legal research and I am disinclined to allow that time, for this particular motion anyway. The time spent on the preparation of the motion materials and the drafting of the factum seems appropriate to me except that I would again avoid the duplication by allowing the amount for Mr. Heeney for the preparation of the motion materials of the $410.00 that is itemized in the Costs Outline and allowing in full the $514.00 for Ms. White but not the additional $270.00 for Heeney.
[9] On the disbursements side, certainly the minimal disbursements that ought to be included are the $52.50 for the process server and the $75.00 for filing. I think the others are matters that I can, in the circumstances, properly discount or ignore.
[10] In the end, I assess the amount of the Bill at $1,300.00 for fees, $65.00 for GST on the fees and $127.50 for disbursements, for a total of $1,492.50.
[11] I have endorsed the Record: “For oral reasons given, the defendants are entitled to costs for the plaintiffs’ Notice of Motion for Leave to Appeal, the Order of Allen J., which I fix at $1,300.00 for fees, $65.00 for GST and disbursements of $127.50 for a total of $1,492.50.”
ASTON J.
Date of Reasons for Judgment: October 3, 2008
Date of Release: October 9, 2008
COURT FILE NO.: 328/08
DATE: 20081003
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
PAUL TIAGO and ANITA TIAGO
Plaintiffs
- and -
TINIMINT HOUSING NON-PROFIT INC., THE REGIONAL MUNICIPALITY OF PEEL, SAMUEL PROPERTY MANAGEMENT LTD., MARTA MUNOZ, BRUCE LAIRD, IAN LATIMER and SPEIGEL NICHOLS FOX LLP
Defendants
ORAL REASONS FOR JUDGMENT
ASTON J.
Date of Reasons for Judgment: October 3, 2008
Date of Release: October 9, 2008