ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: CV-08-162
Date: 2012/05/02
Between:
STUART ROSS Plaintiff – AND – JOANNE MARIE WINGROVE Defendant
Robert Nightingale, and Maria Kinkel for the Plaintiff
James Battin, for the Defendant
turnbull J.
costs endorsement
[ 1 ] In this action, the plaintiff successfully brought a claim against the defendant for a declaration of adverse possession with respect to an approximate ten foot strip of land between their cottage properties which had primarily been used by the plaintiff as a driveway for access and egress from his cottage and for parking his vehicle. The plaintiff made two offers to settle this action and counsel for the defendant has fairly agreed in his written submissions that the plaintiff is entitled to partial indemnity costs to the date of the first offer dated July 9, 2009 and substantial indemnity costs thereafter.
[ 2 ] The total for amount claimed for costs in the Plaintiff’s Bill of Costs is $62,295.50 plus H.S.T. plus disbursements of $4680.00 including H.S.T. The major difference between the parties with respect to disbursements is $1,000.00 which the plaintiff claims is necessary to pay for and register a Reference Plan to implement the terms of the judgment. I find that such a disbursement is necessary and reasonable and that the plaintiff is entitled to his disbursements as claimed.
[ 3 ] The trial of this action extended over 8 days. Unfortunately, the time estimations to complete the trial were understated and hence the trial had to be adjourned for continuation on at least two occasions. During the trial, Mr. Nightingale conducted virtually all the case for the plaintiff and Ms. Kinkel was present in the courtroom through the entirety of the trial, taking notes and assisting Mr. Nightingale. During submissions, she made submissions to the court on the legal issues of adverse possession, prescriptive easements and related topics. The plaintiff’s request is for $4,000.00 per day during the trial which include the combined fees of Mr. Nightingale and Ms. Kinkel, including the preparation time before court on the morning of trial and the preparation time in the evening.
[ 4 ] The action was handled from the outset by Ms. Kinkel. It was shortly before trial that Mr. Nightingale became involved in it. The defendant does not dispute the preparation time of Ms. Kinkel at a partial indemnity total of $5,355.50 and a substantial indemnity total of $9620.00 for a total of $14,975.00 plus H.S.T. of $750.00.
[ 5 ] The major objections to the Bill of Costs submitted by the plaintiff are as follow:
a. Counsel fee for Ms. Kinkel at trial. She docketed 64 hours for her trial attendances. Mr. Battin submits that the action could have been handled by one counsel, just as the defence of this action was handled by one lawyer.
b. The number of hours claimed by Mr. Nightingale. Mr. Battin kept detailed dockets of his time actually spent at trial on each day that court sat hearing evidence. His total docketed hours for court time were 42.05 hours. Hence, Mr. Battin submits that a more reasonable amount for Mr. Nightingale’s time at trial would be $16,820.00 based on an hourly billing rate of $400.00 per hour. Mr. Nightingale has billed his time at $400.00 per hour on a substantial indemnity basis and the defendant agrees that for a barrister of Mr. Nightingale’s experience, that is an appropriate and fair rate. I concur.
[ 6 ] I find it reasonable that a junior lawyer like Ms. Kinkel would carry the file to the verge of trial as it was able to be done by her much more cheaply than if Mr. Nightingale had carriage of it from its inception. Hence, the preparation time for Mr. Nightingle to “get up to speed for trial”, is reasonable in my view.
[ 7 ] Mr. Nightingale estimated that he had approximately 20 hours of preparation prior to the trial commencing. He has reduced that total preparation time between November 16 th and December 16 th , 2010 due to admitted duplication of effort with Ms. Kinkel and claims $5,000.00 for the work done in that period. I find that to be reasonable.
[ 8 ] Between the adjourned trial dates, he had an additional eleven hours of preparation time which I find to be reasonable. I assess that time at $4,400.00. He had a further 6 additional hours of preparation on June 8 th , 2011 to prepare his final submissions to be delivered the next day and for which he claims $2,400.00. That time was not seriously disputed by Mr. Battin.
The Law:
[ 9 ] In Davies v Clarington (Municipality) (2009) 2009 ONCA 722 , 100 O.R. (3d) 66 (C.A.) , the court confirmed the overriding principle in assessing costs is that the costs awarded be reasonable in the circumstances after confirming the following principles articulated in Anderson v. St. Jude Medical Inc. (2006) 2006 85158 (ON SCDC) , 264 D.L.R. (4 th )557 :
The discretion of the court must be exercised in light of the specific facts and circumstances of the case in relation to the factors set out in Rule 57.01(1).
A consideration of experience, rates charged and hours spent is appropriate, but is subject to the overriding principle of reasonableness as applied to the factual matrix of the particular case. The quantum should reflect an amount the court considers to be fair and reasonable rather than any exact measure of the actual costs of the successful litigant.
The reasonable expectations of the unsuccessful party is one of the factors to be considered in determining an amount that is fair and reasonable.
The court should seek to avoid inconsistency with comparable awards in other cases. “Like cases”(if they can be found), should conclude with like substantive results”.
The court should seek to balance the indemnity principle with the fundamental objective of access to justice.
Analysis
[ 10 ] Rule 57.01(1) Factors in Discretion:
In exercising its discretion under Section 131 of the Court of Justice Act to award costs, the Court may consider, in addition to the result in the proceeding and any Offer to Settle or to contribute made in writing.
(0.a) the principle of indemnity, including, where applicable the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed; …
c) the complexity of the proceeding;
d) the importance of the issues;
(i) Any other matter relevant to the issue of costs.
Complexity of the Proceeding
[ 11 ] This case was not overly complex on the law but rather was essentially a fact driven case, the result of which was totally dependent on the issues of credibility of the parties and their evidence respectively given at trial. The Plaintiff’s case was successful because of his ability to successfully challenge and rebut the evidence of the Defendant on her examination for discovery and at trial by the cross-examination of those witnesses at trial, the calling of independent witnesses to disprove that evidence, the continued investigation of the file during the trial including the summonsing of the Sogan survey and the production of Exhibit 11 from the Defendant witness’s file at trial. The Plaintiff had the onus of proof in this case and the rejection of the Defendant’s evidence at trial was crucial to the success of the Plaintiff’s case at trial.
Importance of the Issues
[ 12 ] Mr. Ross resides in his house in Long Point on a year round basis and the issue in dispute was of significant importance to him. But for his taking action in this case, he would have been forced to put up with the Defendant’s extension of their house to within 6 feet of his own property which would have obviously significantly detracted from the appearance and enjoyment of this residence. It would also have impeded his ability to maintain his property on the east side and, in particular, to remove the significant amount of sand that accumulates there every winter. If he was not successful, he would have been denied access to and use of that property on the east side of his house including the deck on the south east corner. He would not have been able to park cars on the driveway strip leading to Beach Avenue.
[ 13 ] The issues in the case were also very important to the defendant. Her ability to maintain the location of the newly constructed foundation and her use of the driveway area depended on her being successful in the action. She chose to litigate the issues rather than settling them. She was represented by experienced counsel throughout these proceedings and she undoubtedly was aware of the legal risks and her possible exposure to a significant costs order if she was not successful in this case. The result of the decision requires her to now significantly change her plans for the house and incur further costs for so doing.
[ 14 ] I find that it was reasonable for Ms. Kinkel to assist Mr. Nightingale at the trial of the action. The evidence which had to be produced by the plaintiff was more extensive and complicated than that presented by the defendant, largely because the onus rested on the plaintiff. However, I am also mindful that to a certain extent Ms. Kinkel was present at trial also as a learning experience and have taken that into consideration.
[ 15 ] As for the time charged by Mr. Nightingale at trial, I find a daily counsel fee for he and Ms. Kinkel of $3,500.00 is reasonable bearing in mind the complexity of the matter and the law involved. Hence, I award counsel fee to the plaintiff of $28,000.00.
[ 16 ] I have also taken into account the principle of proportionality in this matter. The cottages are on a beautiful sandy beach in one of the most popular summer tourist locations in Ontario. The properties in question have significant value. The costs awarded of $50,000.00 plus HST plus disbursements are significant but proportional to the importance of the dispute between the parties.
Conclusion
[ 17 ] The plaintiff shall have judgment against the defendant for his costs of this action fixed in the sum of $50,000.00 plus H.S.T. plus disbursements of $4680.00.
Turnbull, J.
Released: May 2, 2012