ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
B E T W E E N:
ANTHONY MELIDY and JACQUELINE TRACEY MELIDY
Applicants
- and –
HOLLAND MARSH DRAINAGE SYSTEM JOINT MUNICIPAL SERVICE BOARD
Respondent
ACTING DRAINAGE REFEREE ) ANDREW C. WRIGHT ) THURSDAY, THE 30th DAY ) OF MARCH, 2023 )
ORDER
The Court of the Drainage Referee, having received written costs submissions from the parties, for the reasons which follow:
THIS COURT ORDERS that partial indemnity costs payable to the applicants are hereby fixed in the amount of $6,510.99, made up of $2,500 ($500 X 5 days) for Mr. Melidy’s hearing and preparation time, plus $1,745.85 for limited retainer legal services plus disbursements of $2,265.14.
Dated at London this 30th day of March, 2023.
____________________________________ Andrew C. Wright Acting Drainage Referee
REASONS
1In my decision dated February 25, 2023, it was ordered that the applicants are entitled to their costs, on a partial indemnity basis, payable by the Service Board and that, if the parties were unable to agree, each party could make brief written submissions to the presiding Acting Drainage Referee within 30 days.
2I also ordered that the Service Board reimburse the applicants for all money paid by them to the Town or to the Service Board for production under the Freedom of Information and Protection of Privacy Act. The amount paid to the Town can be verified by the Town to the Service Board. I understand that amount is $432.50; whatever it is, that reimbursement is to be paid separately and independently of the question of costs.
3I have now reviewed submissions from both parties about costs.
4The appellants have produced accounts for limited retainer consultations with lawyers as follows:
(a) There is an account dated April 6, 2021 made up of fees of $520.00 plus HST of $67.60 and disbursements of $157.65 plus $229.00 plus HST of $20.49. The disbursements are for filing the Notice of Appeal/Application and related Law Society Levy and Fees. A VISA payment receipt has been produced documenting payment of $542.74 by VISA.
(b) There is an account dated May 31, 2021 made up of fees in the amount of $755.00 plus HST of $98.15 and no disbursements. A VISA payment receipt has been produced documenting payment of $853.15 by VISA.
(c) There is a March 10, 2021 VISA payment to a law firm for $452.00 but no account has been produced supporting this payment; I am going to assume that this amount is all for fees plus applicable HST.
(d) There is an account dated July 10, 2019 made up of fees in the amount of $900.00 plus HST of 117.00 for a total of $1,017.00 with no disbursements. This account is noted as paid by e-transfer July 10, 2019.
5These lawyers’ accounts include docketed time entries indicating who did what, when and the time involved.
6The appellants have also produced an invoice from a surveyor for $1,808.00, the amount of which includes HST.
7Mr. Melidy also claims $90.65 for miscellaneous undocumented out-of-pocket disbursements for parking at the Barrie Courthouse and for the purchase of Publication 852.
8For disbursements I am going to allow the disbursements from the April 6, 2021 lawyer’s account plus applicable HST; that is $157.65 + $229.00 + $20.49 for a total for legal disbursements of $407.14. As well I am going to allow, as a disbursement, the $1,808.00 amount paid to the surveyor with applicable HST. To that I am going to add a reduced amount of $50.00 for miscellaneous undocumented out-of-pocket disbursements.
9The total disbursements to be allowed is $2,265.14.
10The fee portions of the amounts paid to lawyers are to be discounted by 60% to a partial indemnity level; before discounting, the total fees, including applicable HST, is $2,909.75. The partial indemnity amount is $1,745.85.
11Mr. Melidy is a self-represented layperson who has no equivalent docket entries of what he did and when he did it, and how much time he spent doing so. He says he spent at least 100 hours engaged in preparing for and attending pre-hearing conferences, the two days of evidence on February 15th and 16th, 2023, and final submissions on February 17, 2023. The amount of his claim is based on $150.00 per hour, which is his understanding of what would be charged by a law firm for the time of a legal clerk. So, he is seeking 60% of $15,000 or $9,000, plus disbursements as partial indemnity costs.
12Mr. Scriven for the Service Board says that Mr. Melidy needs to provide receipts for disbursement claims. He has since done so to the extent reflected above.
13Mr. Scriven also reflects that Mr. Melidy has advanced $15,000 as his “full indemnity rate” without providing any support for the time actually spent and without providing a Bill of Costs as required by Rule 57.01(5) or any other support for that particular number for his “services”. Mr. Scriven goes on to submit that Mr. Melidy should have $500 per day for each hearing day plus disbursements once proof of same has been provided.
14I cannot ignore the fact that there is no record of what Mr. Melidy did, when he did it and how much time he was engaged doing it. I favour Mr. Scriven’s approach of using a partial indemnity rate of $500 for each of the three days of hearing time. To that I would add two days of preparation time, again at a partial indemnity rate of $500 per day. This is in addition to the $1,745.85 partial indemnity with respect to the limited retainer outside legal assistance described above.
15Accordingly, I fix partial indemnity costs payable to the applicants in the amount of $6,510.99, made up of $2,500 ($500 X 5 days) for Mr. Melidy’s hearing and preparation time, plus $1,745.85 for limited retainer legal services plus disbursements of $2,265.14.
16In addition, I reiterate, the Service Board is to reimburse the applicants for all money paid by them to the Town or to the Service Board for production under the Freedom of Information and Protection of Privacy Act.
Dated at London this 30th day of March, 2023.
____________________________________ Andrew C. Wright Acting Drainage Referee