ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 00-2060
DATE: 2012-01-19
B E T W E E N:
SAM’S AUTO WRECKING CO. LTD., c.o.b. AS WENTWORTH METAL
Mark M. O’Donnell and John G. Webster, for the Plaintiff (and Cross-Claimants, Dalton Timmis Insurance Group and George McCarter)
Plaintiff
- and -
LOMBARD GENERAL INSURANCE COMPANY OF CANADA, DALTON TIMMIS INSURANCE GROUP INC., and GEORGE McCARTER
Jack Fitch and Jason G. Arcuri, for the Defendants (save and except for Dalton Timmis Insurance Group and George McCarter)
Defendants
HEARD: December 1, 2, 3, 7, 8, 9, 2010 Arguments Received : February 11, 2011
COSTS JUDGMENT
WHITTEN J.
[ 1 ] Judgment was released in this matter October 28, 2011. The claim of the plaintiff and cross claimant was dismissed in its entirety. The judgment concluded with the usual invitation to resolve the question of costs or to make submissions. The latter have now been received.
ANALYSIS
[ 2 ] Section 131 of the Courts of Justice Act provides that costs are in the discretion of the court. As with any discretion, it should be exercised in an objectively fair and reasonable fashion with an eye to the particular circumstances of the case, Ref. Boucher v. Public Accountants Council for the Province of Ontario , 2004 14579 (ON CA) , [2004] O.J. No.2634 .
[ 3 ] Rule 57.01 of the Rules of Civil Procedure sets out the general principles applicable, above and beyond the results of the proceeding itself. In this matter, a relatively polarized case issue-wise, there were understandably no offers, this was literally a win-lose situation.
[ 4 ] Among the enumerated list of factors in the rule are such issues as:
The level of experience of counsel for the successful party and consequently his or her hourly rate and time dissipated both in preparation and trial participation (presumably one would expect that experience begets efficiency in that the knowledge base of the advocate, allows him or her to proceed without reviewing that base each go-around.)
The amount of the claim,
The complexity of the issues, and
Any conduct on the part of either party that tended to contribute one way or the other to the duration of the proceedings.
[ 5 ] The list of factors enumerated pursuant to Rule 57.01 is not exhaustive. The application of those factors is not a robotic exercise aided by a calculator. It is an evaluation aided by a broad and efficient appreciation of what it takes to produce a competent and efficient advancement of the issues in support of a party’s position.
APPLICATION
[ 6 ] As noted in the original judgment, the original trial was spread over six days. The basic facts were not in dispute; namely, the unfortunate accident leading to the partial loss of a limb of a trusted employee of the plaintiff. There were no documentary conflicts. The sole focus within the trial was the interpretation of the insurance contract. This court essentially found that there was no ambiguity in the contract, there was no coverage for the original mishap. Perhaps that conclusion was a product of someone standing back at a distance (as hopefully as any court does) and looking at the contract wondering how it can be interpreted otherwise. One can understand how counsel for the plaintiff would seek to find meaning beyond conventional interpretation, especially given the amounts that the plaintiff and cross-claimant, the insurance broker and brokerage, had settled for. Indeed, the written submissions of counsel for the plaintiff were lengthy, but this attempt at nuance was at times obtuse and the logic therein was thin. If the weight in pounds of the submissions could carry the day independent of logic, these submissions possibly could have been “an easy read”. The submissions were far from clear. They were a tortuous read of an impossible spin. However, that gambit was risky and now costs will flow.
BILL OF COSTS
[ 7 ] Once commences the critique with an eye to the breadth of the experience of the original counsel for the defence, quarter of a century before the courts. This counsel could not continue to serve the client as the plaintiff had raised a potential understanding as to the sharing of costs about the time of the mediation. The defendant, the insurance company, to the surprise of the other parties, did not participate in the mediation. The mediation was successful in that it contained the damages to be received by the injured employee and the responsibility for those damages as between broker and insured. It does appear to this court that there was an element of acquiescence or “keeping of the cards close to the chest” on the part of the insurance company, that would allow the other side to maintain a degree of optimism with respect to the potential for ultimate contribution.
[ 8 ] Before this first concern is left, counsel would have had to shepherd the process through pleadings and documentary production. The sum of $5000 is attributed to that task (note all sums found are on the basis of a partial indemnity rate).
[ 9 ] Under the heading of “Plaintiff’s application for coverage determination”, the counsel above with the aid of a more junior member participated in the “determination of coverage issues”, preparation of responding materials and attendance at court regarding adjournments. Frankly, wouldn’t the coverage issue been squarely addressed within the firm before that point? This sector presents as a lot of discussion about the basic proposition. The appropriate sum for this portion of the Bill of Costs is set at $2500.
[ 10 ] The attendance of the original counsel and the hours incurred for the purposes of examination for discoveries is entirely appropriate. Therefore, the actual amount requested of $5,117.97 shall stand. The same could be said of the attendance and efforts of G. Gill with respect to the undertakings and refusal motions, therefore $3,293.40 is the appropriate amount.
[ 11 ] The time spent by the original lead counsel for purposes of the preparation and attendance for the pretrial appears a bit rich, especially given his experience and, no doubt, by that time mastery of the key issue. That sum is reduced to $3000.
[ 12 ] Counsel for the plaintiff has questioned the necessity for the original counsel to be re-involved in the preparation for trial, given that after the mediation there was a potential for him to be a witness. That is a legitimate question. What contribution by him was necessary, especially when there was a junior, two students of law, and one law clerk to aid the new senior counsel cast in the lead counsel’s seat. Overall, the preparation for trial by the defence team appears excessive for essentially a one-issue trial over six days with no witnesses presented by the defence. The appropriate sum found with respect to preparation is $25,000.
[ 13 ] With respect to the actual attendance at trial spread over six days, the amount of $12,870 is within an acceptable range and is allowed.
[ 14 ] Under the heading of “Preparation of Written Submissions”, the original counsel again re-appears, not in a cameo role but in a major supporting role cost-wise. That recruitment is mystifying, given his complete absence at trial. The submissions, themselves, which were well written and logical, appear to be primarily the product of Mr. Arcuri, a relatively new but promising member of the bar. To Mr. Arcuri’s credit he was able to meet the density and arcane arguments of the counsel for the plaintiff with aplomb. Using Mr. Arcuri’s contribution as a base, the appropriate amount for the written submissions is fixed at $10,000.
[ 15 ] As for disbursements, having reviewed the “transactions listing” (Tab 6 of the Costs Submissions of the defendant insurance company), there are several concerns.
[ 16 ] There is an agency fee referred at page 7 of $260.69 without any explanation as to why an agent will be required. That amount is disallowed.
[ 17 ] At page 8, there is a reference to out of town travel which apparently includes meals approximately $500. Obviously meals are consumed whether one is in town or elsewhere. The contents of a meal are up to the consumer. However, given this rather daily necessity, it’s not an item that should be claimed from the other side. The losing party is not obliged to feed the victors.
[ 18 ] At page 23, component 137(s) refers to stationery supplies in the amount of $230. So what are we talking about: the copious amounts of photocopying paper consumed in all the photocopies, pencils, ball point pens, cartridges for the printers? Obviously, there are pockets of resistance in a supposedly paperless society. Is this not an aspect of “overhead”? Is the other side to feed and generally provide the victor with his stationery?
[ 19 ] Page 27, commences with several notations for “legal research” totaling $16,163.83. Certainly “farming out” research is a contemporary phenomena. Having said that, can it not be assumed that lawyers who are certified specialists who practice a particular specialty, retain a certain based knowledge? Does that knowledge evaporate after each trial? The issues in this trial were quite basic, part of the acquired and inherent knowledge of a specialist. There was absolutely no detail as to what exactly the legal research was all about. There was no esoteric points to be researched. This item, given the absence of justification and detail, is denied in its entirety.
[ 20 ] At page 7, component 155S refers to “unknowns”. There is some reference to Toronto and Unionville. This component sounds like Donald Rumsfeld using the Go Train. There is reference to fax transmission. One wonders how in a day and age of “flat rates” how this would be a cost?
[ 21 ] Component 326H at page 42 refers to subpoenas for witnesses in excess of $1059. 00. No witnesses were called by the defence. Even if witnesses had been called from the insurance company, would the company have had to subpoena its own employees? The same question arises with respect to item 327H, conduct money, which totaled $212.00. Perhaps witnesses were on a standby basis. Regrettably, there’s no detail as to who these witnesses were and what was their potential contribution.
[ 22 ] For all of the above, the appropriate sum for disbursement is fixed at $5,000. In addition, GST/HST on that amount and the amounts found appropriate with respect to fees is payable.
[ 23 ] It is left to counsel to calculate and agree with respect to the final amount of costs payable.
WHITTEN J.
Released: January 19, 2012
COURT FILE NO.: 00-2060
DATE: 2012/01/19
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: SAM’S AUTO WRECKING CO. LTD., c.o.b. AS WENTWORTH METAL Mark M. O’Donnell and John G. Webster, for the Plaintiff (and Cross-Claimants, Dalton Timmis Insurance Group and George McCarter) - and – LOMBARD GENERAL INSURANCE COMPANY OF CANADA, DALTON TIMMIS INSURANCE GROUP INC., and GEORGE McCARTER Jack Fitch and Jason G. Arcuri, for the Defendants (save and except for Dalton Timmis Insurance Group and George McCarter) COSTS JUDGMENT WHITTEN J.
Released: JANUARY 19, 2012