DATE: 20041116
DOCKET: C40803; C40068; C40039
COURT OF APPEAL FOR ONTARIO
RE:
RONALD COUTANCHE, JANET COUTANCHE, CHRISTINA COUTANCHE AND DERYK COUTANCHE (Plaintiffs/Respondents) - and - NAPOLEON DELICATESSEN,
ST. LAWRENCE COLLEGE OF APPLIED ARTS AND TECHNOLOGY, GARY JAMES PALMER, THE CLARKSON INN a division of JR. WESTON INC., GABRIEL ORSINI,
WILLIAM LARKIN and JOHN DOE CAB COMPANY;
(Defendants (Clarkson, Palmer, Orsini and St. Lawrence, Appellants))
BEFORE:
SIMMONS, ARMSTRONG, JJ.A., and LANE J. (ad hoc)
COUNSEL:
Steven Baldwin
for the appellant Gabriel Orsini
Lisa La Horey and Theresa Hartley
for the appellants The Clarkson Inn and Gary James Palmer
K. Bruce B. Chambers
for the appellant St. Lawrence College
Eric Williams and Esther Cantor
for the respondents
HEARD:
March 24, 2004
Submissions as to costs in writing July 5, 6 and 9, 2004
E N D O R S E M E N T A S T O C O S T S
[1] On June 28, 2004, we released Reasons allowing this appeal and setting aside the order of Greer J. extending certain limitation periods. We ordered that all issues relating to the respondent plaintiffs’ request to extend the limitation period in respect of the appellant College be adjourned to the trial; that the respondent plaintiffs’ request for an extension of the limitation period in respect of appellants Palmer and Orsini, pursuant to s. 2(8) of the FLA, be adjourned to the trial; and that the balance of the respondent plaintiffs’ motion to extend limitation periods in respect of Palmer and Orsini be dismissed.
[2] The order appealed from arose out of a motion by the defendants, here appellants, to dismiss the action because it was commenced three years and three months after the accident and so was beyond the two-year limitation period. The plaintiffs brought a cross-motion to extend the limitation periods and to declare that the time had not begun to run until much later than the date of the accident. Greer J. granted the cross-motion and dismissed the summary judgment motion. The effective result of our orders was to leave the determination of all but one of the limitation issues to the trial judge who will best be able to decide the outstanding issues of fact. Success on these issues has yet to be determined. The allowing of the appeals did not result in a summary judgment for the appellants, as they sought. All of the appellants are still in the action. In these circumstances, we have received requests for an award of costs from all parties.
[3] St. Lawrence College asks for its costs because the College “was substantially successful in as much as the Order of Justice Greer … was set aside on appeal.”
[4] Mr. Orsini seeks costs because the order was set aside and the automobile accident limitation applies. He concedes that the FLA limitation may yet be extended.
[5] Mr. Palmer submits that he was successful: the Order was set aside and the automobile accident limitation applied, with the FLA issue to be determined at trial. Further, prior to the hearing of the appeal, Mr. Palmer offered to accept a dismissal of the entire action without costs.[^1] In principle, a successful appellant should have costs.
[6] In my view, none of these submissions reflects the reality of the situation. The appellants moved to have the action dismissed against them on the timeliness issue, and none of them has succeeded in that objective; not before Greer J. and not in this court.
[7] The respondents submit that they should have costs because, although the Order was set aside, the appellants were not actually successful in obtaining what they sought from this court: dismissal of the action. Further, the respondents submit, they put forward, in affidavit material filed on the motion, the position that the limitation issues contained a significant factual component, which ought to be addressed at trial and not on motion, the very result reached in this court.
[8] Although the real victor in the action is as yet unascertained, there is no question that the respondents have defeated the motion for summary judgment and have largely held that position in this court on the very basis they put forward in the material before Greer J.: that the issues should be decided at the trial. Despite the Order being set aside, in reality, the respondents have been substantially successful and should have their costs here on a partial indemnity basis.
[9] The respondents filed a Bill of Costs totalling $11,920 for preparation and $2,000 for counsel fee for the hearing, described as a full day, plus GST and disbursements. The rates employed are significantly below the maximum rates for each of the two lawyers involved, as befits a case of moderate complexity, although higher than the maximum for the student, for which a $480 deduction is required. The hours are not apparently unreasonable, albeit somewhat higher than some of the appellants. The respondents, however, had to deal with the issues relating to all of the appellants. The disbursements appear reasonable. After the deduction, the Bill is for $13,440 plus G.S.T. and disbursements.
[10] The ultimate question is whether that sum meets the Court’s objective: “… 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.”[^2] In my view, an award of $15,000 inclusive of G.S.T. and disbursements meets this objective, and is fair to all parties.
“Janet Simmons J.A.”
_ “Robert P. Armstrong J.A.”
_ “D. Lane J. (ad hoc)”
[^1]: The relevance of this offer is not apparent.
[^2]: Per Armstrong J.A. at para. 26 of Boucher et al. v. Public Accountants Council (Ontario) 2004 14579 (ON CA), [2004] O.J. No. 2634; 48 C.P.C. (5th) 56 (C.A.); see also Zesta Engineering v. Cloutier (2002) 2002 25577 (ON CA), 21 C.C.E.L. (3rd) 161 (C.A.).