Court File and Parties

Court File Nos.: CV-11-442446 & CV-13-472027 Date: 2016-04-28 Ontario Superior Court of Justice

Between: Loren Hoffman, Plaintiff – and – Avis Budget Group, Inc. also known as Avis World Headquarters, Aviscar Inc., Avis Rent A Car, Inc. also known as Avis Rent A Car also known as Avis Rent-A-Car, Avis Rent A Car System, Inc., Defendants

Counsel: William G. Scott, for the Plaintiff Brigette A. Morrison, for Aviscar Inc.

Heard: November 2, 2015

Between: Loren Hoffman, Plaintiff – and – Continental Casualty Company, Defendants

Counsel: William G. Scott, for the Plaintiff Brigette A. Morrison, for Continental Casualty Company

Heard: November 2, 2015

Before: Hood J.

Costs Endorsement

[1] I have now received the costs submissions of the plaintiff and the defendants, Aviscar and Continental.

[2] The plaintiff seeks a total of $17,673.81 inclusive of HST and disbursements on a partial indemnity basis. The defendants, Aviscar and Continental, argue that the costs associated with some of the fee items in the costs outline are excessive. However, the main argument of the defendants is that certain steps taken by the plaintiff in response to the defendants’ motions to dismiss the plaintiff’s claims did not relate to the abuse of process argument put forward by the defendants on the motion itself.

[3] As an example, the defendants argue that only 30% of the costs associated with the affidavit of Mr. Munro, filed in response to their motion to dismiss, and only 30% of the costs associated with their cross-examination of Mr. Munro and the work done by the plaintiff to respond to the undertakings asked for by the defendants and given to the defendants on his cross-examination should be allowed on this motion as only 30% related to the abuse of process argument made before me. The defendants argue that the plaintiff should ask for the balance of the costs relating to the affidavit and cross-examination if and when the “remaining issues” are dealt with. They argue other items should be at 25%.

[4] I do not believe that this is appropriate. It is not for me to distribute the costs incurred among what might have been argued on the motion. The defendants brought their motions. The plaintiff responded. I cannot say that what was done was an unnecessary step.

[5] Nor is it possible for me to parse through the time spent to attribute a portion to this issue or that issue.

[6] The fixing of costs is discretionary under s. 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01. These include the principle of indemnity for the unsuccessful party, the reasonable expectations of the unsuccessful party, the complexity of the issues and the importance of the issue. The defendants were seeking to dismiss the plaintiff’s actions. Clearly the motions were important to the plaintiff. The matters were complex.

[7] I find the hourly rates being charged reasonable. I find some of the time spent to be excessive, especially the time spent to deal with the undertakings given by Mr. Munro. The motion was a long motion, it took an entire day.

[8] In all of the circumstances, I fix the costs of the motion before me in the amount of $13,000 inclusive of HST and disbursements. This to me is a reasonable amount and should be well within the defendants’ expectations.

[9] The costs are to be paid by the defendants to the plaintiff within thirty (30) days of today’s date.

Hood J. Date: April 28, 2016