Superior Court of Justice - Ontario

COURT FILE NO.: CV-10-399013
DATE: 20120529

RE: ECL Carriers GP Inc., Plaintiff / Responding Party

AND:

City of Toronto, Defendant / Moving Party

BEFORE: Justice E. P. Belobaba

COUNSEL:
David A. Gourlay for City of Toronto / Moving Party

R.G. Slaght and Jon Laxer for ECL Carriers / Responding Party

HEARD: April 18, 2012

COSTS AWARD

[ 1 ] In a decision released on April 30, 2012 I dismissed the City of Toronto’s motion for summary judgment. I was not prepared on the record before me to find in favour of the City and rule that ECL’s bid was non-compliant. I also concluded that a trial was needed in the interests of justice.

[ 2 ] The parties have provided their costs submissions. ECL asks for about $50,000 in costs on a partial indemnity basis. The City says a costs award of $20,000 to $25,000 would be more reasonable.

[ 3 ] This was a hard fought motion. The extensive record (the City filed just under 700 pages and ECL about half that for a total of almost 1000 pages), the numerous affidavits and related cross-examinations, and the required legal research has resulted in significant legal fees. The costs award will also be significant.

[ 4 ] Having said this, however, I am obliged to ensure that the costs awarded are fair and reasonable. The City makes a number of points in this regard that I find persuasive:

• Because the plaintiff’s junior lawyer is a one-year call, his partial indemnity rate based on the Rules Committee’s Information to the Profession (set out in the commentary to Rule 57) should be around $150 rather than $225 – this would result in a reduction of about $10,000;

• There should be some reduction to reflect the overlap and duplication in the work of the plaintiff’s two lawyers – in my view, about $3000;

• There should also be some reduction to reflect the unnecessary costs of retaining and cross-examining haulage experts, whose expertise was not needed or referred to by this court – say $7000.

[ 5 ] In sum, I agree with the City that the plaintiff’s costs should be reduced – in my view, by about $20,000. This leaves a costs award of $30,000.

[ 6 ] Having reviewed the factors set out in Rule 57.01(1) and the admonition of the Court of Appeal in Boucher , [1] I find it fair and reasonable to fix costs at $30,000 , all-inclusive payable forthwith by the City of Toronto to ECL Carriers.

Belobaba J.

Date: May 29, 2012

[1] That the primary obligation of a judge in fixing costs is to consider the factors set out in rule 57.01(1) and fix an amount that is fair and reasonable to the unsuccessful party in the particular proceeding rather than an amount fixed by the actual costs incurred by the successful litigant: Boucher v. Public Accountants Council of Ontario, (2004) 71 O.R. (3d) 291 at para. 26 .