COURT FILE NO.: 07-CV-37333
DATE: 20120606
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SHERIDAN GARDNER, Plaintiff
AND
ATTORNEY GENERAL OF CANADA and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, Defendants
BEFORE: Mr. Justice Robert J. Smith
COUNSEL: Paul Champ, for the Plaintiff
Brian Harvey, for the Defendants
E N D O R S E M E N T R E G A R D I N G C O S T S
Positions of Parties
[1] The defendants seek costs in the amount of $23,895.43, initially on a partial indemnity to the date of its Offer to Settle and on a substantial indemnity basis thereafter. The defendants seek costs on a substantial indemnity basis following their Offer to Settle of a dismissal without costs on May 11, 2009.
[2] The Plaintiff submits that the Attorney General of Canada (“A.G.”) should be awarded modest costs as the A.G. did not move for summary judgment in the action at an earlier stage which would have saved much of the litigation costs. In the alterative, the plaintiff submits that the reasonable expectations of the parties on the amount of costs were established in an exchange of emails before the previous motion for summary judgement. In their exchange, the parties had proposed that a sum of $7,000.00 was reasonable for costs for the summary motion and a further $6,000.00 was reasonable in the action, if the matter was dismissed. The plaintiff submits that these amounts are consistent with what the unsuccessful party would reasonably expect to pay.
Factors
[3] The factors to be considered when fixing costs are set out in Rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and include, in addition to success, the amount claimed and recovered, the complexity and importance of the matter, unreasonable conduct of any party which unduly lengthened the proceeding, scale of costs and any Offer to Settle, the principle of indemnity, hourly rate claimed, the time spent and the principle of proportionality, and the amount that a losing party would reasonably expect to pay.
Success
[4] In this case, the A.G. was successful in having the action dismissed as it was commenced after the time limits established in the Limitations Act, 2002, S.O. 2002, c.24, Sched. B
Complexity and Importance and Proportionality
[5] The issues involved were quite lengthy and involved numerous prior proceedings, however the issue involved on the motion was not overly complex and the matters were important to the parties.
Unreasonable Conduct of Any Party
[6] The A.G. brought a previous motion for summary judgment before McLean J. The first summary motion was dismissed on the grounds that the limitation period for malicious prosecution had not expired or was at least a genuine issue for trial. In the summary motion, a different issue was raised, namely that a claim for damages for malicious prosecution was unsustainable because an appeal of an income tax assessment was not a prosecution. This legal point was conceded by the plaintiff at the second motion for summary judgment.
[7] The issue of whether or not the appeal of an income tax assessment was in fact a prosecution, should have been argued at the same time as the first motion for summary judgment and this involved a duplication of legal proceedings. The plaintiff was successful on the first motion and was awarded costs, however only one summary motion should have been brought in these circumstances.
Scale of Costs and Offers to Settle
[8] The defendants submit that they offered to settle the matter on May 11, 2009 for a dismissal on a without costs basis. However, the Offer contained an additional term, namely that the plaintiff’s estranged spouse also agree to a dismissal of his other four legal proceedings. The Offer further stated it was not open to partial acceptance and remained open for approximately two days from May 11, 2009 until 4:30 pm on May 13, 2009. I agree with the plaintiff’s submission that this is not a Rule 49 offer as it was not open for the plaintiff to accept the offer. In addition, the Offer was not open until the beginning of trial.
Hourly rates, Time spent, Proportionality and Indemnity
[9] The hourly rates claimed by the plaintiffs are reasonable, however I would adjust the rate to 60% of the actual rate charged to the department. The time claimed is also reasonable.
Amount the unsuccessful party would reasonably expect to pay
[10] I agree with plaintiff’s submission in that when the parties previously agreed that the costs would be in the amount of $7,000.00 for the first summary motion and a further $6,000.00 for costs incurred in the action, they established the reasonable expectations of the losing party. This would be a combined amount of $13,000.00 ($6,000.00 + $7,000.00).
Disposition
[11] Having considered all of the above factors, the plaintiff is ordered to pay costs to the defendants fixed in the amount of $10,000.00 inclusive of disbursements and HST. The costs of the motion of $7,000.00 are reduced to $4,000.00 due to the fact that a second summary motion was brought by the defendants on an issue that could have been addressed at the first motion for summary judgment.
R. Smith J.
Released: June 6, 2012
COURT FILE NO.: 07-CV-37333
DATE: 20120606
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SHERIDAN GARDNER, Plaintiff
AND
ATTORNEY GENERAL OF CANADA and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, Defendants
BEFORE: Mr. Justice Robert J. Smith
COUNSEL: Paul Champ, for the Plaintiff
Brian Harvey, for the Defendants
ENDORSEMENT REGARDING COSTS
R. Smith J.
ONTARIO
R. Smith J.
Released: June 6, 2012