ONTARIO
SUPERIOR COURT OF JUSTICE
C ITATION : Fraser v. UBS, 2012 ONSC 128
COURT FILE NO.: CV-10-3123-00
DATE: 20120104
BETWEE N:
Linda Fraser
David A. Zuber, for the Plaintiff
Plaintiff
- and -
UBS Global Asset Management
Joe Conforti, for the Defendant
Defendant
Reasons for Costs
Wein, J
[ 1 ] The defendant was successful in obtaining an order granting summary judgment, resulting in a dismissal of the action against it.
[ 2 ] The defendant now seeks partial indemnity costs in the total amount of $27,176.08. This amount is parsed into two categories: $14,335.35 for the summary judgment and cross-motion, plus $12,840.73 for the dismissal of the action.
[ 3 ] The plaintiff submits that this is a case in which each party should bear their own costs. While acknowledging that in the normal course costs should be awarded to the successful party, the plaintiff argues that the case involved a public concern, related to a disabled employee's rights, and that as well factors including the modest means of the plaintiff and the proportionality of the costs relative to the claim should be considered.
[ 4 ] While I agree that the case law did not yield an obvious result, such that it was undoubtedly appropriate for the plaintiff to pursue the claim, this is not in my view a case that rises to the level of public concern. Each such case must be determined on the unique facts, and it was the complexity of the facts that rendered the case difficult.
[ 5 ] Cases in which the costs have been reduced on the basis of a public policy concern include cases against the government or government agencies or other public entities, involving significant issues of rights, particularly but not necessarily including Charter rights or other issues of broader importance. The plaintiff has not referred me to a case in which a purely private company has been denied costs on the basis of a public policy issue, and in any event this is not a case where I would reduce costs on that basis.
[ 6 ] As well, sympathetic as the circumstances of Ms. Fraser are, this alone is not a basis for denying costs to the successful party. However, it must be said that both parties proceeded expeditiously, on the basis of agreed facts, and that is a factor to consider.
[ 7 ] The issue of proportionality is a more attractive argument, in the sense that normally parties can be expected not to expand undue amounts in litigation over relatively small amounts. If successful at trial, the plaintiff would have been entitled to $24,500 plus interest at most, less amounts already paid to her, and the costs claimed do exceed that amount. I am mindful of R.57.01(1)(0.b), which permits consideration of the amount of costs that an unsuccessful party could reasonably expect to pay.
[ 8 ] As well, some duplication of effort appears to have occurred in relation to the fees charged for the summary judgment and cross-motion as distinct from the dismissal of the action. Of the amount claimed for the dismissal of the action, I would disallow approximately $10,000 on account of duplication of effort.
[ 9 ] Although the hourly rate of $350.00 claimed on a partial indemnity basis is not excessive for senior counsel, many of the services to which that rate was applied, such as research, drafting portions of the factum, and compiling a book of authorities could reasonably have been done at a lower rate by a junior counsel under senior counsel’s oversight. I would reduce the fees claimed by a further $4,000 on these accounts. Travel time should have been billed at half rate.
[ 10 ] In the result, costs will be awarded in the total amount of $13,000 inclusive of disbursements and HST. Having regard to the plaintiff’s circumstances, the plaintiff will have 12 months to pay these costs, interest free.
Wein J.
Released: January 4, 2012
C ITATION : Fraser v. UBS, 2012 ONSC 128
COURT FILE NO.: CV-10-3123-00
DATE: 20120104
ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: Linda Fraser Plaintiff - and - UBS Global Asset Management Defendant REASONS FOR COSTS Wein J.
Released: January 4, 2012