CITATION: Latner v. 1651663 Ontario Inc., 2014 ONSC 4569
NEWMARKET COURT FILE NO.: DC-11-324
DATE: 20140806
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Michael Latner
Defendant/Appellant
– and –
1651663 Ontario Inc.
Plaintiff/Respondent
Ronald B. Moldaver, Q.C. for the Appellant
Michael Anne MacDonald for the Respondent
HEARD: By Written Submissions
H.K. O’Connell, J.
COSTS ENDORSEMENT
Background
[1] On February 25, 2014 I provided my reasons dismissing the appeal of Mr. Latner from the decision of the deputy small claims court judge. I called upon counsel to provide their respective submissions on costs.
[2] Counsel for the respondent sent her submissions to Mr. Moldaver and the Court. Mr. Moldaver duly responded, and Ms. MacDonald provided her reply on March 24, 2014.
Submissions of Ms. MacDonald for the Respondent
[3] The submissions are accompanied by a bill of costs. Counsel is seeking $11,157.94 all inclusive. The disbursement portion inclusive of HST contained in this amount is $731.91.
[4] The costs sought are on a “complete indemnity basis” and reflect commentary that the appellant is a lawyer who deferred paying his account to the respondent for some 5 years whereas the respondent has had to pay his employees for the monies that were withheld. The case did not involve any issue of law, but rather was premised on credibility. Mr. Briese was found credible, Mr. Latner, not. To quote Ms. MacDonald, she views the appeal as “essentially frivolous and used to attempt to bully a small business operator into settling for less, lest the expense of litigation overshadow what was owing and at issue.”
[5] The appeal was delayed by the appellant, which was deliberate, says counsel. Mr. Briese the respondent was forced to retain counsel for the appeal and incur unnecessary expenses.
Submissions of Mr. Moldaver for the Appellant
[6] Mr. Moldaver reminds that costs are not meant to be punitive and in this case there is “no warrant for a claim for “complete” indemnity costs.” Caselaw is cited. There is no reason to depart from the presumptive partial indemnity rule.
[7] Reference must be made to Rule 57 and the factors therein and to fix costs in that context premised on reasonableness and fairness. The Court must also consider the reasonable expectations of the parties.
[8] In this case the amount was not large and the issue before the court was not complex. However the issue of quantum meruit was not devoid of merit.
[9] The claim of the respondent, applying the principles is argued to be excessive both as to quantum and scale.
[10] Nor was the appeal difficult for the respondent. The hours claimed are excessive. It should not be lost on the court that the appellant assumes the bulk of the work on an appeal.
[11] Reasonable costs had the appellant succeeded would have been $3,500.00, argues Mr. Moldaver with reference to his bill of costs.
[12] Mr. Moldaver challenges some of the disbursements claimed as well, inclusive of travel concerns and fresh evidence preparation. The fees claimed do not add up to the sum proffered by Ms. MacDonald.
[13] The simple issue was the non-payment of only some of Briese’s bills, namely Briese’s time. He was shown to be wrong but “that is no warrant for the allegations that are made in the Respondent’s submissions.”
[14] It is irrelevant to suggest a shadow of a further appeal, as there isn’t one and in any event it is nonetheless irrelevant. The allegation of deliberate delay is likewise without foundation.
[15] A cost award of 3,500.00 all inclusive, is therefore warranted.
Reply of the Respondent
[16] Counsel recognizes that her math in her bill of costs was wrong and should have been $10,105.21 on a complete indemnity basis. But counsel fee for attendance at the appeal at full indemnity rate recovery leads to a total claim all inclusive of costs, of $10,105.21.
[17] Ms. MacDonald argues in reply that the fresh evidence preparation was required given that the appellant was arguing on appeal that the issue of fair market value was germane. This required a response which was compiled. That response required preparation of the motion to adduce fresh evidence, canvassing of competitors of Mr. Briese to see if they would provide information pro bono, and counsel’s time to deal with that material.
[18] Finally counsel revisits her argument that there was purposeful delay by the appellant in perfecting his appeal, all driven by the impure motive of the appellant in trying to wear down the respondent.
DECISION
[19] Full indemnity recovery on costs is rare. It is meant to be punitive to recognize that in some cases the conduct of the party requires particularly strong sanction. Reprehensible, scandalous or egregious conduct is required. This is not a case where I can find such conduct on behalf of the appellant.
[20] I could speculate as to why perfection took as long as it did on this appeal, but that would be simply that, speculation. It is not I find a factor that guides my hand in determining what a fair and reasonable costs award should be, proportionate to the issues at hand.
[21] Having regard to the issues on appeal, having regard to the presumptive right that a party has to bring an appeal, even though the court did not grant the appellant the relief that he sought, and having regard to the dockets and able argument of both counsel in their submissions, I find that costs in favour of the respondent in the amount of $5,500.00 inclusive of tax and disbursements is appropriate.
[22] I have arrived at this sum noting what the appellant would have claimed in costs as a guide post to reasonableness but have elevated that amount to take into account the preparation for the fresh evidence application, even though I concluded that I need not consider it on the appeal. The preparation for the possibility of the fresh evidence application was reasonable given the position of the appellant.
[23] I also find that some additional cost recovery is appropriate given the preparation time for the appeal as required by Ms. MacDonald and counsel fee for attendance at the appeal.
[24] The costs are payable within the presumptive 30 days.
[25] I add that it would appear based on the submissions that the deputy judge has yet to rule on costs of the trial proper, where Mr. Briese was self-represented. I would hope that determination could be made without any further undue delay.
Justice H. K. O’Connell
Released: August 06, 2014
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ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
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