SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: 05-CV-281603PD3
Date: 2012-07-06

Re: Contract Testing Inc. v. Applied Consumer & Clinical Evaluations Inc. et al

Before: H. Sachs J.

Counsel:
Joseph Ziemba and James Smith , for the Moving Party, ACCE

Nick Porco , for the Responding Party, Contract Testing Inc.

E N D O R S E M E N T

[ 1 ] I granted Applied Consumer and Clinical Evaluations Inc.’s (“ACCE”) motion for summary judgment and invited the parties to make written submissions as to costs. I have now received and reviewed those submissions.

[ 2 ] ACCE is requesting its costs fixed in the amount of $117,738.74, inclusive of disbursements of just over $8,200.00. In doing so it argues that the action was complex, that the issues were important since the amounts claimed were very large, that there were 8 days of examination for discovery, that the action spanned a period of 7 years and that it made an Offer to Settle on November 27, 2007 in which it offered to forego its costs if the action were withdrawn at that time.

[ 3 ] The Plaintiff submits that the amount requested is excessive and that either both parties should bear their own costs or the costs should be limited to $35,000.00 inclusive of disbursements and taxes.

[ 4 ] I do not accept that this is a case where each party should bear their own costs. ACCE was successful on their motion for summary judgment and is entitled to their cost of the action and the motion. In my view those costs should be fixed on a partial indemnity basis. The offer was open for acceptance up to the commencement of the trial and contemplated the payment of partial indemnity costs if it were accepted after the date of the offer.

[ 5 ] I agree with the Plaintiff that the amount claimed should be reduced to reflect the fact that these amounts include time spent on defending the action on behalf of the three co-defendants who were let out of the action on a without costs basis in November of 2010, after they had been examined for discovery.

[ 6 ] In my view this action was not as complex as the parties chose to make it. However, the Plaintiff was claiming a very large amount from ACCE and ACCE cannot be blamed for defending its interests as vigorously as possible.

[ 7 ] The average hourly rate claimed by ACCE’s counsel was $265.00. This amount is too high, given the fact that counsel was called to the bar in 2010. A more appropriate average rate on a partial indemnity basis is $190.00 per hour.

[ 8 ] ACCE is claiming for approximately 365 hours worth of work at $265.00 per hour. In my view, those hours should be reduced to 300 to reflect the time that was spent defending the individual co-defendants. At $190.00 per hour, this results in an amount for fees of $57,000.00, which is an amount that a losing party in these circumstances would anticipate paying by way of costs. I would allow H.S.T. on this amount of $7410.00 and I would reduce the amount of disbursements claimed to $7500.00 to reflect the fact that some of the disbursements claimed would have been incurred in relation to the individual defendants.

[ 9 ] For these reasons I order the Plaintiff to pay to ACCE its costs fixed in the amount of $71,910.00.

H. SACHS J.

Released: