COSTS ENDORSEMENT

COURT FILE NO.: CV-09-386048
DATE: 20120223

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DAVID SCHOOLEY

Plaintiff

AND:

LERNERS LLP

Defendant

BEFORE: Mr. Justice Lederer

COUNSEL:
Timothy J. Law , for the Plaintiff
Allan Rachlin , for the Defendant

Costs Endorsement

[ 1 ] At its root, this action dealt with a client’s concern for the conduct of his lawyer at certain points in an earlier proceeding. In the end, that lawsuit was not successful and the client commenced this action. After a three-day trial, it, too, was dismissed. The defendant, the law firm with which the lawyer was associated, now seeks its costs on a partial indemnity scale.

[ 2 ] The plaintiff concedes that an award of costs on this basis is appropriate “given the result at trial”. The problem, as the plaintiff sees it, is that “the amount claimed by the defendant under the guise of ‘partial indemnity’ is unreasonably high”.

[ 3 ] The defendant asks for:

Fees……………………………………$16,490.00
HST/GST (on fees)……………………$ 1,735.28
Disbursements (includes HST/GST)…. $ 1,697.76

TOTAL $19,923.04

[ 4 ] The plaintiff complains that this represents two-thirds of the actual fees charged by counsel and that: (i) given that the issues were not complex; (ii) given that none of the plaintiff’s testimony or actions materially delayed the proceedings; and, (iii) given what the reasonable expectations of the plaintiff would be, this is too high. The submissions, made on behalf of the plaintiff, suggest that the proper relationship between a partial indemnity award and the actual costs to the defendant should be 40%, which would result in a proposed award of $12,879.11.

[ 5 ] It should go without saying that an award of costs is a matter for the discretion of the court and is not determined by the application of a formula. For his part, counsel for the plaintiff recognized this when he submitted that “the costs awarded in a proceeding should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party rather than an exact measure of the actual costs of the successful litigant”.

[ 6 ] I agree that the issues were not complex. The fact that they were, as counsel for the defendant submitted, important to the parties is hardly unusual when matters come to court and does not, in and of itself, make the matter complicated. I acknowledge that the plaintiff’s conduct did not delay the proceedings. In this, I differ from counsel for the defendant. It may or may not be that the plaintiff’s evidence was not as it was at the time of discovery. To me, this does not necessarily and, in this case did not, lead to any unusual delay. I have reviewed the hours spent, the division of those hours between counsel and clerks and the rates charged. None of these seem unreasonable to me. To put it another way, it is not out of line with what the reasonable expectations of the plaintiff should have been.

[ 7 ] Accordingly, I award the plaintiff costs in the amount of $19,923.04, inclusive of HST/GST.

[ 8 ] Finally, I should observe that, in his submissions, counsel for the defendant (the law firm) said that the plaintiff had already received a “break” by not having to pay fees in respect of its conduct of the original action. It was said that “the court ought to be reluctant to provide Mr. Schooley with any further costs indulgences”. Whatever arrangement was made between the law firm and its client, as to their fees and the disbursements paid on his behalf, was between them, in respect of the solicitor-client relationship they formed. It cannot, after the fact, stand to the advantage of the defendant in its claim for costs in a subsequent action.

LEDERER J.

Date: 20120223