Court File and Parties
CITATION: Muise v. Mark Wilson’s Better Used Cars Limited, 2021 ONSC 1419
COURT FILE NO.: DC-19-77-00
DATE: 20210224
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
GARY MUISE
Jonathan Pinkus, for the Respondent
Respondent/Plaintiff
- and -
MARK WILSON’S BETTER USED CARS LIMITED
Robert W. Dowhan, for the Appellant
Appellant/Defendant
HEARD: In Chambers
Reasons for Costs
Daley J.
[1] The respondent was successful on this appeal and as such he is presumptively entitled to costs.
[2] I have received submissions from both counsel and I have concluded that the respondent is entitled to his costs on a partial indemnity basis. Counsel for the appellant takes no issue with the lawyer's hourly rates or the disbursements incurred by the respondent.
[3] However, the appellant does dispute the time spent by counsel for the respondent in preparing for and attending on this appeal. The appellant submits that the respondent's legal costs should be limited to the sum of $6,103.24 which is inclusive of disbursements of $852.81.
[4] One of the considerations to be examined when fixing costs is what costs could the losing party have reasonably expected to pay in the event, they were unsuccessful.
[5] The appellant has not provided any submission regarding this consideration and most notably counsel for the appellant has not submitted a bill of costs which would otherwise demonstrate what costs were incurred by the appellant on this appeal.
[6] The appellant's attack on the quantum of costs associated with the lawyer's fees is no more than "an attack in the air", absent a Bill of Costs from that party: Risorto et al. v. State Farm Mutual Automobile Insurance Co., 2003 43566 (ON SC), [2003] O.J. No. 990, at para. 10 (Winkler J, as he then was).
[7] As has been stated by our courts on many occasions, it is not for the court to second-guess successful counsel on the amount of time spent on the case or the allocation of counsel to the tasks at hand.
[8] Although counsel for the appellant has criticized the time spent by counsel for the respondent in several respects, absent a bill of costs on behalf of the appellant, little consideration can be given to those submissions.
[9] I have fully considered the respondent's cost submissions, including the Bill of Costs submitted and I am satisfied that the costs as claimed by the respondent, in the sum of $9,813.26, on a partial indemnity basis, are fair and reasonable and that they represent a level of costs that the appellant should reasonably have expected to pay in the event it was unsuccessful on the appeal.
[10] Furthermore, I satisfied that these costs are proportionate to the conduct of litigation in the Small Claims Court. Notably, the hourly rate being claimed by counsel for the respondent is in the very modest amount of $192 per hour. This is an hourly rate that is clearly consistent with the mandate of the Small Claims Court in handling disputes on an economical basis.
[11] In the result, the appellant shall pay to the respondent's costs in the all-inclusive sum of $9,813.26. An order shall issue accordingly.
Daley J.
Released: February 24, 2021
CITATION: Muise v. Mark Wilson’s Better Used Cars Limited, 2021 ONSC 1419
COURT FILE NO.: DC-19-77-00
DATE: 20210224
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GARY MUISE
- and -
MARK WILSON’S BETTER USED CARS LIMITED
REASONS FOR COSTS
Daley J.
Released: February 24, 2021