ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: CV-10-398705
Date: March 9, 2012

BETWEEN:

MICHAEL BENZIE and NORMAN BENZIE Applicants

– and –

MITCHELL KUNIN and BARBARA HANIA Respondents

Michael Meredith and Clarke Tedesco, Counsel for the Applicants
Allan S. Halpert, Counsel for the Respondents

McCombs J.:

COSTS RULING

[ 1 ] On February 9, 2012, I released a judgment dismissing the applicants’ motion. See Benzie v. Kunin 2012 ONSC 976, [2012] O.J. No. 607.

[ 2 ] The motion arose in the context of a family dispute over interests in a residential property. At issue was the legal validity of an agreement among the parties that had been registered on title for almost twenty-five years.

[ 3 ] The respondents were wholly successful on the motion and are entitled to costs on a partial indemnity basis. The parties have been unable to agree on costs and I have received and considered their written submissions.

[ 4 ] The respondents seek costs of $32,125.02 inclusive of H.S.T., while the unsuccessful applicants submit that an appropriate costs order would be less than half of that amount.

[ 5 ] The record before me on the application showed that both sides felt wronged by the other; it is regrettable that the disagreement reached the stage where lawyers and the courts became involved. Although I do not go so far as to say the application was misconceived, the applicants must have been aware that they faced an uphill battle and were unlikely to succeed.

[ 6 ] In the circumstances, I conclude that costs should be awarded at 60% of the respondents’ counsel’s normal hourly rate of $400.00, or $240 per hour on a partial indemnity basis.

[ 7 ] I reject the applicants’ suggestion that solicitor Howard Ungerman was only marginally involved in the preparation for this motion, and his work should not be included in my costs order. On the application, it was argued that the agreement was not properly registered on title and in support of their position, the applicants raised issues of legislative interpretation and application to the history of the registration on title in question. The applicants’ arguments were effectively responded to, as evidenced by my conclusions in paragraphs 24 and 25 of my ruling.

[ 8 ] I have no difficulty in accepting that research and input from an experienced real estate expert was necessary to the effective presentation of argument on behalf of the respondents, and in view of the issues raised, preparation time of 14.6 hours by Mr. Ungerman is reasonable. Given his thirty-five years of experience, his hourly rate of $400 is eminently reasonable. On a 60% partial indemnity basis, his hourly rate is $240.00.

[ 9 ] The applicants point out that the disbursements item claiming $2000 for “legal research” is not supported by documentation as required by a combined reading of Rule 57.01(5) and Form 57A. I accept this submission. I do not know what the research involved, who did it, or how long it took. The claim for $2000 in disbursements for legal research is denied.

[ 10 ] With the above conclusions in mind, I calculate the appropriate costs award as follows:

• Fees: (78 hours @ $240) $18,720.00
• HST @ 13%: $2,433.60
• Disbursements: $ 1,479.52
• HST @ 13% (for applicable items) $ 176.22

Total: $22,809.82

Accordingly, I award costs to the respondents in the amount of $22,808.82 payable forthwith.

McCombs J.

Released: March 9, 2012