COURT FILE NO.: 04-CV-274779CM2 46/06

DATE: 2008-02-13

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Pamela Bader, Plaintiff (Respondent on appeal)

-and-

Robert Rennie, Defendant (Appellant)

HEARD: June 7, 2007; Costs submissions in writing October/November, 2007;

BEFORE: Lane, Swinton and Bryant JJ.

COUNSEL: Jeffrey S. Klein, for the Appellant Ronald Chapman, for the Respondent

E N D O R S E M E N T A S T O C O S T S

[1] The defendant moved for summary judgment before Belobaba J. and lost. Leave to appeal was granted and we allowed the appeal and asked for submissions as to costs.

[2] The appellant seeks costs throughout. The day following the granting of leave to appeal, the appellant served an offer to settle on the basis of a dismissal of the action without costs and now seeks substantial indemnity costs from the date of the offer and partial indemnity costs prior to the offer.

[3] Rule 49 does not apply to offers to settle appeals: Jones v. Kansa General Insurance Co. 1992 7664 (ON CA), [1992] O.J. No. 1597 (C.A.) at paragraph 58; Douglas Hamilton Design Inc. v. Mark (1993) 66 O.A.C. 44 (C.A.). No other basis for substantial indemnity costs was provided. The costs will be fixed as partial indemnity costs.

[4] Belobaba J. ordered that the costs before him would be $2,000. Although we have reversed his substantive order, he was in a good position to fix the quantum of costs before him and we adopt his figure, but to be paid by the plaintiff.

[5] The costs of the motion for leave were, as is usual, reserved to this panel. They should be paid by the plaintiff respondent to the successful appellant. Similarly, the plaintiff should pay the costs before us.

[6] The defendant asks for costs throughout in the amount of $18,683.16 of which $15,891.25 is for fees on the mixed partial/substantial indemnity basis based on the offer. Backing out the substantial indemnity amounts reduces the fees claim to $13,853. Counsel for the plaintiff submits that the total of 8.8 full days charged for a case which was dismissed at the pleadings stage is excessive and proposes an appropriate amount would be $10,000. He does not specify whether this is fees or all costs.

[7] In our view, there is likely some duplication involved in having the second lawyer involved and his hourly rate is close to Mr. Klein’s which indicates not much saving in delegating work. Mr. Chapman’s comment on the hours is not without some merit, but his overall figure is too low.

[8] A judge fixing costs ought not to micro-manage the case in hindsight, but to focus on the main issue. Here, the case was not really complex; the legal issue had been decided as our reasons reflect. Nor was the amount actually at stake out of the ordinary notwithstanding the exaggerated claim of $10 million. No doubt the effort was put into the matter as reflected in the hours, but there may have been some duplication both of effort and of personnel. Mr Chapman’s comments do not strike us as entirely without substance. Following the case law, we ask: At the end of the day, what is the total for fees and disbursements that would be a fair and reasonable amount to be paid by the unsuccessful parties in the particular circumstances of this case?[^1] The award does not necessarily equal the sum of the parts; an overall sense of what is reasonable should be factored in to determine the ultimate award. The reasonable expectations of the paying party are also a factor to be considered. This is not a subjective inquiry, but an objective one. What would the reasonable person in the shoes of the respondent expect might be his or her exposure to costs? We do not have precise evidence of the general level of costs awarded, but must rely on our collective experience.

[9] In our view, an appropriate figure is $12,000 for fees plus disbursements and GST. The item for “photocopies, tabs and coils” at $681 seems extraordinary but was not challenged and is allowed as part of the disbursements.

Lane J.

Swinton J.

Bryant J.

DATE: February 13, 2008

[^1]: See Murano v. Bank of Montreal (1998) 1998 5633 (ON CA), 41 O.R. (3rd) 222, at page 247; Zesta Engineering Ltd. v. Cloutier, (2002), 2002 25577 (ON CA), 21 C.C.E.L. (3rd) 161 (Ont. C.A.); Boucher v. Public Accountants Council (Ontario), (2004) 2004 14579 (ON CA), 71 O.R. (3rd) 291 (C.A.)