COURT FILE NO.: 10-49601
DATE: 20120730
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
2964376 CANADA INC. o/a AMEUBLEMENT PRESTIGE FURNITURE Plaintiff/Defendant by Counterclaim – and – ANNIE BISAILLON Defendant/Moving Party
Kenneth Radnoff, Q.C./Jonathan P.M. Collings, for the Plaintiff/Defendant by Counterclaim
Jacquie El-Chammas / J. Bruce Carr‑Harris, for the Defendant/Moving Party
HEARD: By written submissions
COSTS DECISION
Métivier J.
[ 1 ] The plaintiff was successful in its action for defamation against the defendant. The defendant’s cross-claim was dismissed. The plaintiff is entitled to its costs of the proceedings in this court.
[ 2 ] The defamatory allegations included those of dishonesty, fraud and untrustworthiness, and encouraged republication. The e‑mails were sent to 38 friends and colleagues of the defendant. It is impossible to know if there was wide distribution of these, as once in cyberspace these statements remain alive and the defamation possibly ongoing.
[ 3 ] The plaintiff submits that it is entitled to substantial indemnity costs, and puts these at $39,795.49.
[ 4 ] Cases such as DiBattista v. Wawanesa Mutual Insurance Co., 2005 41985 (ON SC) , [2005] O.J. No. 4865 (S.C.J.) affirmed (2006), 2006 33544 (ON CA) , 83 O.R. (3d) 302, (C.A.) stand for the proposition that costs should be awarded on a substantial indemnity basis when unfounded allegations of fraud, dishonesty seriously prejudicial to the character or reputation of a party are made. In Murano v. Bank of Montreal (1995), 41 C.P.C. (3d) 143 (Ont. Gen. Div.) the court had come to the same conclusion where the allegations were repeated in the pleadings, as they were here.
[ 5 ] The plaintiff says that the defendant has consistently refused to apologize, even though litigation could have been avoided by such an apology, as was offered by the plaintiff.
[ 6 ] In the alternative, partial indemnity costs are submitted to be $27, 658.16.
[ 7 ] The plaintiff also asks for costs of $500.00 for preparing the costs submissions.
[ 8 ] The disbursements are said to be $4,789.78.
[ 9 ] The defendant submits that the substantial indemnity rate is inappropriate because the plaintiff was not fully successful. It was not granted aggravated damages; and only $15,000.00 in damages were awarded. This latter point in itself, says the defendant, should disentitle the plaintiff to any costs since this was within the monetary jurisdiction of the Small Claims Court.
[ 10 ] I reject this last argument as the claim was for a far greater amount, and the counterclaim from the defendant was for $75,000.00. I find that the plaintiff was successful, despite the fact that aggravated damages are not allowable for a corporation and that the damages reflected the fact that a corporation can not have hurt feelings.
[ 11 ] The defendant submits further that the rates charged are excessive, that the senior counsel’s supervisory role does not warrant the fees charged, and that even at a substantial indemnity rate, the maximum is $350.00 per hour, not the $450.00 claimed. He submits that at partial indemnity rates, the amount would be $18,724.95 (plus disbursements).
[ 12 ] The defendant also submits that certain disbursements are not substantiated: specifically the strategic assessment at $750.00, translation at $557.00 and agent fees at $460.00. The defendant then submits its own list of disbursements which amount to $2,976.70.
[ 13 ] Unfortunately, the defendant does not submit its own costs so as to permit a comparison of what it would have asked for had it been successful. The legal services were also rendered by a senior counsel supervising junior counsel. It is thus impossible to determine the expectation of the defendant concerning the quantum of the costs award.
[ 14 ] Overarching a consideration of the rates charged and hours spent is the need for the court to assess what is a fair and reasonable amount that should be paid by the unsuccessful party. Zesta Engineering Ltd.v. Cloutier , 2002 25577 (C.A.).
[ 15 ] I am of the view that an award of costs on a substantial indemnity basis is appropriate. The offer made by the plaintiff was reasonable, that by the defendant was not. Malice was found, and I have adverted to other considerations above.
[ 16 ] However, I am also of the view that the amount claimed is far in excess of what is reasonable. There are several reasons for this, including the issue of duplication when senior counsel supervise junior counsel, and the fact that the damages awarded were modest.
[ 17 ] Accordingly I fix the amount of costs at an amount I find to be fair and reasonable, being $25,000 all-inclusive, to be paid by the defendant Annie Bisaillon.
The Honourable Madam Justice M. Métivier
Released: July 30, 2012
COURT FILE NO.: 10-49601
DATE: 20120730
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: 2964376 CANADA INC. o/a AMEUBLEMENT PRESTIGE FURNITURE Plaintiff – and – ANNIE BISAILLON Defendant COSTS DECISION Métivier J.
Released: July 30, 2012