Sydie et al. v. Murad, et al., 2012 ONSC 416
CITATION: Sydie et al. v. Murad, et al., 2012 ONSC 416
COURT FILE NO.: CV-08-089682-A1
DATE: 20120117
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DAVID SYDIE, ANNA IACONO and TINA IACONO
Plaintiffs
- and -
MENASHE MURAD and 1202612 ONTARIO INC., c.o.b. as INSPECT-TECH
Defendants/Respondents
AND BETWEEN
HUB INTERNATIONAL ONTARIO LIMITED, TOTTEN INSURANCE GROUP INC., THE WHOLESALE INSURANCE GROUP INC., CERTAIN UNDERWRITER’S AT LLOYD’S UNDER AGREEMENT NUMBER NA2006TW01, ASSURANCE PIERRE THIBODEAU INC., AND PIERRE THIBODEAU
Third Parties/Moving Parties
COUNSEL:
Peter T.J. Danson, for the Defendants
Jonathan Heeney, For the Third Parties, Certain Underwriter’s at Lloyd’s under Agreement Number NA2006TWO1
COSTS ENDORSEMENT
LAUWERS J.
[1] The underlying facts in this case are found at 2011 ONSC 5781. The defendants seek substantial indemnity costs from the third party Lloyd’s, largely on the basis that by letter dated March 3, 2010 they pointed out that the third party’s motion was hopeless given the outcome in Slough Estates Canada Ltd. v. Federal Pioneer Ltd. (1984), 1994 CanLII 7313 (ON SC), 20 O.R. (3d) 429.
[2] In my view the third party was entitled to pursue the motion and doing so does not amount to the sort of misconduct that should attract substantial indemnity costs: St. Elizabeth Home Society v. Hamilton (City) (2010) 2010 ONCA 280, 319 D.LR. (4th) 74, [2010] O.J. No. 1515 (C.A.) at para. 92.
[3] The relevant principles for the exercise of the court’s discretion were canvassed by the Court of Appeal in Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 per Epstein J.A. at para 51, focussing on the specific facts and circumstances of the case in relation to the factors set out in rule 57.01(1): Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) [2004] O.J. No. 2634, Moon v. Sher (2004), 2004 CanLII 39005 (ON CA), 246 D.L.R. (4th) 440 (Ont. C.A.) [2004] O.J. No. 4651, and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 2005 CanLII 1042 (ON CA), 75 O.R. (3d) 638 (C.A.). She noted at para. 52 that:
…the overriding principle is reasonableness. If the judge fails to consider the reasonableness of the costs award, then the result can be contrary to the fundamental objective of access to justice. Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant. In Boucher, this court emphasized the importance of fixing costs in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding at para. 37, where Armstrong J.A. said "[t]he failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice."
[4] An element is the losing party's reasonable expectation as to the costs payable: Moon v. Sher at paras. 21, 22, 35. Proportionality also plays a role: Rule 1.04 (1.1).
[5] Mr. Danson seeks partial indemnity costs in terms of fees at what is identified as a partial indemnity rate of $16,916.95 plus $3,051.00 for the appearance. The actual rate for the lawyers involved is $18,366.17 plus $3,305.25 for the appearance. This is not the appropriate ratio between these costs, as reflected in the decision of Power J. in Rodrigues Holdings v. Vaughan (City), [2006] O.J. No. 4779. He sets the appropriate relationship at about 60 per cent, and on the weight of that figure adverts to the ratio between partial indemnity costs and substantial indemnity costs referred to in rule 1.03 of the Rules of Civil Procedure.
[6] I agree with Power J. that the ratio of 60 per cent is more appropriate. Applying the ratio to the actual fees plus appearance fees set out in Mr. Danson’s costs outline produces a figure of $13,000.00 plus HST plus disbursements in the amount of $1,154.04.
[7] This amount seems reasonable in light of the figures provided. The Bill of Costs provided by the third party shows fees at a partial indemnity rate at a total of $11,396.70 which is roughly comparable, considering that the moving party normally has more work to do than the responding party.
[8] I find that the amounts thus payable by the parties are fair and reasonable, and duly proportional.
[9] The amounts are to be paid within 30 days of the date of this decision.
P.D. Lauwers J.
Released: January 17, 2012