Court File and Parties
DIVISIONAL COURT OF JUSTICE - ONTARIO
RE: Pierre Arsenault, Tenant (Appellant)
AND
Akilan Thevathurai, Landlord (Respondent)
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Pierre Arsenault, self-represented Tenant (Appellant)
S. David Lyman, for the Landlord (Respondent)
HEARD: By Written Submissions
RULING AS TO Costs
Ruling as to Costs
1The respondent was successful in obtaining an order quashing an appeal from an April 2015 order of the Landlord and Tenant Board. On August 25, 2015, I made the order quashing the appeal. Pursuant to my order the appellant was given until September 27, 2015, to move out of the residential rental property owned by the respondent.
2The parties were given the opportunity to agree upon costs of the matter. Failing such an agreement being reached, the respondent was required to deliver submissions and the appellant was given a deadline by which to deliver his responding submissions with respect to costs.
3On September 8, 2015, I received submissions with respect to costs on behalf of the respondent. The submissions were received within the specified deadline for same. The deadline for submissions, with respect to costs, on behalf of the appellant has passed. No submissions were received from the appellant.
4The respondent seeks costs totalling $1,390.87 (inclusive of fees, disbursements, and HST) for the motion to quash, which took three hours (over two days – July 3 and 6, 2015).
5The respondent seeks a counsel fee only for the three hours during which his counsel was required in court to argue the motion. The respondent restricts the fee portion of costs claimed in recognition that the appellant is a person of limited means.
6I have no doubt that counsel for the respondent invested numerous hours in preparing the written and oral submissions for the motion. The respondent was required to address nine grounds of appeal. The materials and submissions on the motion to quash were well-prepared and well-organized. The respondent is being extremely reasonable in restricting his claim for fees to the three hours spent by his counsel in arguing the motion.
7The respondent submits that he is entitled to costs on a substantial indemnity basis. The respondent emphasizes subrule 57.01(1)(f) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and my finding that “[t]he appeal manifestly lacks substance and is entirely devoid of merit.” I agree with the respondent’s emphasis of that factor. I would add to it consideration of subrule 57.01(1)(d) – the importance of the issues. The appellant’s conduct was the sole reason why the respondent was unable to proceed, in the spring of 2015, to sell or live in the property at which the appellant was renting his accommodation.
8I therefore award the respondent costs on a substantial indemnity basis for the three hours of counsel time claimed. Respondent’s counsel, David S. Lyman, is 15 years at the bar. The substantial indemnity rate of $275 per hour for counsel of that level of experience is reasonable. The respondent is entitled to fees totalling $825.00, plus HST in the amount of 107.25.
9The disbursements claimed total $405.86 (plus HST of $52.76). The disbursements include $239.75 for photocopies and binding of materials on the motion; $127.00 for the filing fee; and $39.11 for service of documents by registered mail. The latter two items are accepted as reasonable.
10No explanation is provided for the $239.75 for copies and binding (number of pages, charge per page of copying, or amount for binding). Without such an explanation it is difficult to assess the reasonableness of the amount claimed. I therefore fix the amount for copies and binding at $150.00.
Disposition
11In summary the respondent is awarded costs on a substantial indemnity basis as follows:
Fees
Counsel fee - $ 825.00
HST on fees - $ 107.25
Sub-total - $ 932.25
Disbursements
Copies/binding - $ 150.00
Filing fee - $ 127.00
Registered mail - $ 39.11
Sub-total - $ 316.11
HST on disb. - $ 41.09
Subtotal - $ 357.20
Total $ 1289.45
Date: November 27, 2015
Justice S. Corthorn
CITATION: Arsenault v. Thevathurai, 2015 ONSC 7419
COURT FILE NO.: 15-DC-2110
DATE: 2015/11/27
ONTARIO
DIVISIONAL COURT OF JUSTICE
RE: Pierre Arsenault, Tenant (Appellant)
AND
Akilan Thevathurai, Landlord (Respondent)
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Pierre Arsenault, self-represented Tenant (Appellant)
S. David Lyman, for the Landlord (Respondent)
RULING AS TO COSTS
Justice S. Corthorn
Released: November 27, 2015