Lee v. Simmons, 2018 ONSC 504

CITATION: Lee v. Simmons, 2018 ONSC 504

DIVISIONAL COURT FILE N^O.: 14-61407

DATE: 2018/01/22

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LABROSSE J.

BETWEEN:

Byeongheon Lee

Plaintiff

– and –

Doc McGhee, McGhee Entertainment, Capital Security and Investigations, Canadian Tire Centre, Gene Simmons and KISS

Defendants

Byeongheon Lee, Self-Represented

Stephen Cavanagh and Robin S. Brown, Counsel for the Defendant Gene Simmons

HEARD: By Written Submissions

COSTS ENDORSEMENT

1In accordance with paragraph 32 of my Endorsement dated August 22, 2017 [Lee v. Simmons et al., 2017 ONSC 4980], the Defendant provided me with his written costs submissions which are dated September 22, 2017. The Plaintiff was to respond thirty days thereafter. While a Defendant is not required to file an Affidavit of Service when filing Costs Submissions, the court file does include a copy of the Defendant’s correspondence dated September 22, 2017 which confirms that the Costs Submissions were sent to the Plaintiff by regular mail and by fax. A copy of this correspondence is attached as Appendix “A” to this Costs Endorsement.

2The Plaintiff has not filed any response to the Defendant’s costs submissions.

3The Defendant seeks his costs on a partial indemnity basis. He does so because he was completely successful in having the Plaintiff’s claim dismissed as against this Defendant. The total amount of fees and disbursements on a partial indemnity basis for this matter is $7,105.30, consisting of:

i) $6,330.49 for fees (inclusive of HST), and

ii) $774.81 for disbursements (inclusive of HST).

Analysis

4I have considered the following principles in my decision to award costs to Defendant:

− The Courts of Justice Act, R.S.O. 1990, C. C.43 (“CJA”) provides:

131(1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

− The Court, when exercising its discretion pursuant the CJA in determining costs to be paid, seeks to balance principles of indemnifying blameless successful litigants and allowing for access to justice, particularly when considering the growing number of self-represented litigants.

− The Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA) articulated the principles that govern costs assessments. The Court of Appeal directed that costs are to be fixed in accordance with sub-rule 57.01(1) and the Tariffs and also stated: “Overall, as this court has said, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.

5I have also considered the factors set out in Rule 57.01 and the Costs Outline for Motion submitted by the Defendant. I highlight that hours were spent by three different individuals for which the highest number of hours were spent by the most senior counsel in a matter that I would qualify as being of limited complexity and importance. More of the time spent could have been assigned to junior counsel. However, the Defendant had no choice but to defend.

6Overall, I conclude however that the time spent was reasonable and there were no improper steps or steps which tended to shorten or lengthen the proceedings. In the big picture, the total cost of defending a claim and proceeding with a motion to dismiss is still very reasonable at $7,105.30 on a partial indemnity scale.

7In this case, the Defendant was successful on its motion and is entitled to an award of costs on a partial indemnity basis. When I consider the time spent by each lawyer, the complexity of the issues and of what is fair in all the circumstances, I fix costs payable by the Plaintiff to the Defendant Gene Simmons at $5,500 inclusive of disbursements and HST.

Mr. Justice Marc R. Labrosse

Released: 2018/01/22

CITATION: Lee v. Simmons, 2018 ONSC 504

DIVISIONAL COURT FILE N^O.: 14-61407