ONTARIO SUPERIOR COURT OF JUSTICE
2012 O NSC 2811
COURT FILE NO.: 12-CV-443677
DATE: May 17, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Thomas Gold Pettinghill LLP
Applicant
- and -
Ani-Wall Concrete Forming Inc. and Cassels Brock & Blackwell LLP
Respondents
COUNSEL:
• Andrew L. Mercer for Thomas Gold Pettinghill LLP
• George F. Vella for Ani-Wall Concrete Forming Inc.
HEARING DATE : In Writing
PERELL, J.
REASONS FOR DECISION (Costs)
[ 1 ] My reasons for decision in this Application are reported Thomas Gold Pettinghill LLP v. Ani-Wall Concrete Forming Inc. 2012 ONSC 2182 .
[ 2 ] In the result, I granted the Application and ordered that $61,351.64 being held by the Applicant Thomas Gold Pettinghill LLP (“TGP”) be paid to the Respondent Cassels Brock & Blackwell LLP (“Cassels Brock”).
[ 3 ] The order was subject to two terms: (1) the successful party TGP shall pay the costs of the unsuccessful Respondent, Ani-Wall Concrete Forming Inc.; and (2) within 20 days, Ani-Wall may obtain an appointment with an assessment officer for an assessment of Cassels Brock’s accounts.
[ 4 ] Ani-Wall now seeks costs of $26,242.74 from TGP on a substantial indemnity basis or costs of $21,067.17 on a partial indemnity basis.
[ 5 ] TGP submits that the circumstances of this case do not justify the extraordinary order of a substantial indemnity award. It submits that Ani-Wall should receive costs on a partial indemnity basis.
[ 6 ] TGP does not dispute the quantity of time claimed by Ani-Wall’s lawyer, but it disputes the hourly rate attributed to the time.
[ 7 ] TGP submits that the hourly rates claimed by Ani-Wall are inconsistent with the Rules of Civil Procedure , which define substantial indemnity rates as being 1.5 times the rate under the partial indemnity scale.
[ 8 ] TGP then argues that Ani-Wall has claimed partial indemnity rates that are too high and should be $231 for Mr. Vella and $165 for Matthew Vella.
[ 9 ] More precisely, the argument is that Ani-Wall’s claimed partial indemnity rate is $300 (actual rate $385) for George Vella and $200 (actual rate $275) for Matthew Vella. Then, relying on Rodriquez Holdings Corp. v. Vaughan (City) 2006 Carswell 7611 (S.C.J.) where Justice Power offered as guidelines the suggestions that partial indemnity rates should be in the range of 60% of the lawyer’s actual rate and substantial indemnity rates should be in the range of 90% of the lawyer’s actual rates, TGP reasons that the partial indemnity rate should be $231 for Mr. Vella and $165 for Matthew Vella. At these rates, Ani-Wall would be entitled to $11,058 for partial indemnity costs.
[ 10 ] I agree with TGP’s submission that this is not a case for costs other than on a partial indemnity basis. That being the case, George Vella’s partial indemnity rate of $300 is 78% of his actual rate of $385 and Matthew Vella’s partial indemnity rate of $200 is 73% of his actual rate of $275. I see nothing wrong, however, with these partial indemnity rates for the circumstances of this case.
[ 11 ] The guidelines in Rodriquez Holdings are just that, they are guidelines. The Vellas’ actual base rates are not exorbitant, and their partial indemnity rates provide a partial not a full indemnity. I need not consider whether the Vellas’ proposed substantial indemnity rates provide too substantial an indemnity because I am not awarding substantial indemnity costs.
[ 12 ] That all said, a partial indemnity award of $21,067.17, which I understand to be inclusive of disbursements and HST is somewhat high and would in my opinion be beyond the reasonable expectations of the party exposed to paying costs.
[ 13 ] Accordingly, I award Ani-Wall an all inclusive award of $19,000 on a partial indemnity basis.
Perell, J.
Released: May 17, 2012
COURT FILE NO.: 12-CV-443677
DATE: May 17, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Thomas Gold Pettingill
Applicant
‑ and ‑
Ani-Wall Concrete Forming Inc. and Cassels Brock & Blackwell LLP
Respondents
REASONS FOR DECISION
Perell, J.
Released: May 17, 2012.