CITATION: 805882 Ontario Inc. v. Moffat 2010 ONSC 1041
DIVISIONAL COURT FILE NO.: DV-821-09
DATE: 20100217
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
805882 ONTARIO INC.
Plaintiff (Respondent)
– and –
CRAIG MOFFAT
Defendant (Appellant)
William A. Brunton, for the Plaintiff (Respondent)
Matthew C. Madott, for the Defendant (Appellant)
HEARD: December 24, 2009
COSTS
Paul Kane, S.C.J.
[1] The Appellant’s motion for leave to appeal herein is denied. Accordingly, the Respondent was successful on the motion and should be entitled to costs.
[2] The Respondent’s cost outline seeks a cost award of $8,026.68, consisting of $5,197 in fees, $2,500 counsel fee on the motion and disbursements.
[3] The Respondent commenced a rule 76 action claiming a liquidated sum of $22,000 in unpaid rent under a lease. The Appellant responded by way of an unsuccessful motion to stay the action on the basis the issue was covered by an arbitration clause. Rivard J. dismissed that motion and awarded costs to the Respondent of $2,200. The Appellant filed an appeal as of right, thinking the decision of Rivard J. was a final order. Both parties filed their materials on the appeal. The Appellant then realized that leave was required as Rivard J’s decision was interlocutory which resulted in the motion before me.
AMOUNT CLAIMED AND RECOVERED
[4] Liability remains to be determined. The costs claimed on this motion represent some 35% of the amount claimed in the action. That appears high to me in a R. 76 action.
COMPLEXITY OF THE ISSUE
[5] The issue was not complex. It involved interpretation of an arbitration clause in a shareholder agreement and whether it was applicable to a lease agreement.
IMPORTANCE OF THE ISSUE
[6] The combined costs of counsel on the motion before Rivard J. and before may equal the amount claimed in the action. The failure to obtain leave to Divisional Court saved additional counsel fees on the argument of the appeal. Principle here appears more important to each party than obtaining the determination of liability in an expeditious and economic manner.
WAS ANY STEP IMPROPER VEXATIOUS AND UNNECESSARY
[7] There is no issue as to any step in the action being vexatious etc. Nor is there any evidence of refusals to admit.
CONDUCT LENGTHENING THE PROCEEDING UNNECESSARILY
[8] Respondent argues the leave sought should have been presented several motions earlier which increased cost by the filing of appeal materials.
EXPERIENCE OF COUNSEL
[9] Respondent’s counsel has some 34 years experience.
HOURS SPENT AND RATES
[10] Counsel for the Respondent claims 18 hours at $275/hour, compared to his actual rate of $350/hour, for a total of $5,197 inclusive of G.S.T., plus $2,500 counsel fee on the motion.
OTHER MATTERS
[11] Respondent counsel is from North Bay and attended in Sudbury to argue this motion. This involves three hours of travel. Argument of the motion consumed two hours. Counsel fees of $2,500 therefore equals full indemnity for a seven hour day.
[12] The Respondent argues that he should receive substantial indemnity for the legal services incurred to prepare the materials on the appeal to Divisional Court in addition to the costs of this motion which result in the appeal not proceeding. Those costs on the main appeal would not have been incurred if the Appellant had initially, and unsuccessfully, sought leave to appeal. The costs prior to this motion, of some 10.2 hours in responding to this appeal “as of right”, is outside the costs of this motion. The Respondent however agrees I should deal with those costs as well and accepts that my decision refusing leave, ostensibly affects a dismissal of that appeal. Given the request therefore of both parties, I will fix those costs as well.
[13] I find no basis to award costs at a rate higher than partial indemnity in either subject.
[14] For the above reasons, I fix costs;
a) of this motion payable by the Appellant at $3,700 inclusive of disbursements and G.S.T. which is payable within 30 days.
b) Of the appeal, now not proceeding, at $1800, inclusive of G.S.T. and disbursements, payable in 30 days.
Paul Kane, S.C.J.
Released: February 17, 2010
CITATION: 805882 Ontario Inc. v. Moffat 2010 ONSC 1041
DIVISIONAL COURT FILE NO.: DV-821-09
DATE: 20100217
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
805882 ONTARIO INC.
Plaintiff (Respondent)
– and –
CRAIG MOFFAT
Defendant (Appellant)
REASONS ON MOTION
Paul Kane
Superior Court Justice
Released: February 17, 2010