Court File and Parties
COURT FILE NO.: CV-17-569858 DATE: 20190408 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
MOLLY GALLO, a minor by her Litigation Guardian FRANCESCO GALLO and FRANCESCO GALLO Plaintiffs – and – BRAMALEA CITY CENTRE EQUITIES INC., MORGUARD CORPORATION, SCHINDLER ELEVATOR CORPORATION, FUJITEC CANADA INC. and TECHNICAL STANDARDS AND SAFETY AUTHORITY Defendants
Counsel: Heidi R. Brown and Rachel Radomski, for the Plaintiffs Adam Grant, for the Defendant, Technical Standards and Safety Authority
HEARD: In writing
BEFORE: M. D. FAIETA j.
Reasons for Decision on Costs
Introduction
[1] For reasons dated March 4, 2019, I dismissed a motion by the Defendant Technical Standards Safety Authority (“TSSA”) for summary judgment which asked that this action be dismissed as against it. See Gallo v. Bramalea City Centres Equities Inc. et al., 2019 ONSC 1443.
[2] The Plaintiffs seek their partial indemnity costs of $41,033.67 comprised of fees of $27,245.43 and disbursements of $13,788.24.
[3] The TSSA submits the Plaintiffs should be awarded $10,000.00 in costs. TSSA submits:
TSSA takes issue with the items claimed for costs, as most of the costs and disbursements claimed relate to the action generally, rather than to the summary judgment motion specifically. To the extent that work performed or disbursements incurred on behalf of the Plaintiffs will continue to be of value in the ongoing action, such costs and disbursements should be more appropriately pursued in the course of the action.
[4] For reasons described below, I order that the TSSA pay costs of $40,000.00 to the plaintiffs.
Analysis
[5] The fixing of costs is governed by s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Rule 57.01 is the primary rule governing costs. It enumerates various factors to consider when exercising discretion to award costs. Also relevant is Rule 1.04(1.1), which provides that “[i]n applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.”
[6] The ultimate question is whether an award of costs reflects “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”: Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.), para. 26.
[7] I now turn to the various relevant considerations in assessing costs in this matter.
Principle of Indemnity
[8] The TSSA does not dispute the hourly rates charged by counsel for the plaintiffs. On a partial indemnity basis, Ms. Radomski’s hourly rate is $180.00, Ms. Brown’s hourly rate is $390.00. I note, from the Costs Outline submitted by the TSSA, that Mr. Grant’s hourly rate is $153.00. I find that these hourly rates are proper partial indemnity rates given that they are 55%-60% of counsel’s reasonable actual rate: Inter-Leasing, Inc. v. Ontario (Revenue), 2014 ONCA 683, para. 5.
[9] The TSSA questions a number of items.
[10] As noted above, the TSSA submits that disbursements that will continue to be of value to the plaintiffs should not be claimed on this motion. No authority was provided to support this assertion. It is entirely reasonable for the costs associated with the report prepared by Neil Bigelow and Edwin Wang, and the attendant examination, to be included as part of the costs of this motion given the liability issues raised by the TSSA’s motion to dismiss the plaintiff’s action and given that their evidence was before the Court on this motion. Given that it commented on the liability of other parties, I note that the plaintiffs fairly only seek to recover 60% of the engineer’s fee of about $13,500 in relation to the report.
[11] Further, in my view, the four attendances at CPC Court for the scheduling of the TSSA’s motion for summary judgment are recoverable costs as they were ultimately necessitated by the TSSA’s pursuit of its litigation strategy to obtain a dismissal of the plaintiff’s action on a summary judgment basis.
[12] Finally, I note that the plaintiffs claim for costs on this motion does not include preparation for, and attendance, at the examination for discovery of any of the other defendants and the third party which occurred over three days.
The Amount that an Unsuccessful Party could Reasonably Expect to Pay
[13] The TSSA submits that its partial indemnity costs for the entire action to the date of the motion was $28,714.50 and that, of that amount, it incurred partial indemnity costs of $15,984.60 for the summary judgment motion. It is unclear from the TSSA’s Costs Outline what costs it allocated to the summary judgment motion.
[14] In any event, given that the dismissal of the plaintiffs’ action was at stake, I do not think that it fairly rests with the TSSA to question whether the plaintiffs spent more time than needed to respond to the TSSA’s motion particularly given the amount of fees claimed. The views expressed by former Chief Justice Winkler in Risorto v. State Farm Mutual Automobile Insurance Co. (2003), 64 O.R. (3d) 135, para. 9, are applicable:
… courts have repeatedly stated that the role of the court on a costs disposition is not to second-guess successful counsel on the amount of time spent on the case or the allocation of counsel to the tasks at hand. (See Tri-S Investments Ltd. v. Vong, [1991] O.J. No. 2292 (Quicklaw) (Gen. Div.); Lawyers' Professional Indemnity Co. v. Geto Investments Ltd., [2002] O.J. No. 921 (Quicklaw), 17 C.P.C. (5th) 334 (S.C.J.).) This was a hard fought motion which, if the defendant were successful would have terminated the proceeding short of a trial. Its importance cannot be discounted after the fact.
The Amount Claimed and the Amount Recovered
[15] The plaintiffs were wholly successfully in having the TSSA’s motion for summary judgment dismissed.
The Complexity of the Proceeding
[16] The motion for summary judgment was heard within three hours nevertheless the matters raised, particularly related to the regulation of the escalator in question, were of moderate complexity.
The Importance of the Issues
[17] The issues were of importance to both parties.
Conclusions
[26] I find that it is fair and reasonable for the TSSA to pay costs of $40,000, inclusive of HST and disbursements, to the plaintiffs in respect of the motion for summary judgment within 30 days.