ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 08-6345
DATE: 2012-07-24

B E T W E E N:

Elizabeth Ann Riehl and Peter Thomas Riehl

Plaintiffs

Robert John Hooper Counsel for the Plaintiffs

• and -

City of Hamilton

Defendant

Colleen Robertshaw, Counsel for the Defendant

RELEASED : July 24, 2012

SUPPLEMENTARY REASONS - COSTS

Cavarzan J.

1In reasons released on June 5, 2012, the parties were invited to submit, within 45 days, brief written submissions on the matter of the quantum of costs to which the successful plaintiffs are entitled. Plaintiffs’ counsel sent their costs submissions on July 4, 2012. To date, there has been no response from counsel for the defendant except for an indication that she has required that plaintiffs’ counsel produce his dockets and invoices. Those were provided by mid-July.

2The trial in this case was conducted over a period of six days in May, comprising four full days and two half days. The plaintiffs made a written offer to settle on May 14, 2012, in the amount of $95,005.00 for damages, inclusive of interest.

3The award at trial, taking into consideration the 25% contributory negligence found, exceeded the amount in the said offer to settle. Pursuant to rule 49.10 of the Rules of Civil Procedure , the plaintiffs are entitled to partial indemnity costs to the date that the offer to settle was served and substantial indemnity costs from that date.

4Having considered the factors listed in rule 57.01, guiding the court’s discretion under s. 131 of the Courts of Justice Act to award costs, this is not a case justifying the awarding of substantial indemnity costs throughout.

5As to quantum, it is not the role of the court to second guess the time spent by counsel unless it is manifestly unreasonable in the sense that the total time spent is clearly excessive or the matter has been overly lawyered. See Basedo v. University Health Network [2002] O.J. No. 597 (Sup. Ct.)

6I find that the time spent in this case is not manifestly unreasonable.

7The approach I am taking in fixing costs is based on my determination of what the services devoted to the case are worth according to the submissions of counsel, my own experience, and with regard to the law declared in Zesta Engineering Ltd. v. Cloutier (2002), 2002 25577 (ON CA) , 21 C.C.E.L. (3d) 161 (Ont. C.A.) at para 4 :

In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.

8In its 2004 decision in Boucher v. Public Accountants Council for the Province of Ontario (2004) 2004 14579 (ON CA) , 71 O.R. (3d) 291 at para 26 , the following was said concerning rule 57.01(3):

In particular, the rule makes clear that the fixing of costs does not begin and end with a calculation of hours times rates... the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.

9The plaintiffs’ claim for partial indemnity costs to the date of their offer to settle and substantial indemnity costs thereafter, inclusive of applicable taxes and disbursements of $11,891.71 is $83,869.40. In my view, a fair and reasonable amount in the circumstances would be a total award of $75,000.00, and I so find.

Conclusion

10For the above reasons, costs are fixed in the amount of $75,000.00 inclusive of disbursements and applicable taxes, payable by the defendant to the plaintiffs forthwith.

Cavarzan J.

Released: July 24, 2012

COURT FILE NO.: 08-6345
DATE: 2012-07-24

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Elizabeth Ann Riehl and Peter Thomas Riehl Plaintiffs - and – City of Hamilton Defendant SUPPLEMENTARY REASONS - COSTS Cavarzan J. JC // dm