COURT FILE AND PARTIES

COURT FILE NO.: 04-CV-271812-PD1
DATE: 2012-09-26
SUPERIOR COURT OF JUSTICE – ONTARIO

RE: MAUREEN RICHARDSON , Plaintiff

AND:

MICHAEL KIMBERLEY, ROOPLAL SABHA (DECEASED), aka RALPH SABHA, RIAD SABHA, NERISSA SABHA and NATASHA VARJACIC

BEFORE: Stinson J.

COUNSEL:
Maxim Kaploun , for the plaintiff, responding party
Raj Anand , for the defendant, Michael Kimberley, moving party
Shana Dale, for the defendants, Riad Sabha and Nerissa Sabha, moving parties
No one , for the defendant, Rooplal Sabha, aka Ralph Sabha
None, for the defendant, Natasha Varjacic

HEARD: By written submissions

ENDORSEMENT AS TO COSTS

[ 1 ] On February 14, 2012, I released my endorsement granting the motions of the moving parties Michael Kimberley and Riad Sabha and Nerissa Sabha, and dismissed this action for delay as against those defendants. I directed that, in relation to costs, the moving defendants were entitled to both the costs of the motion and the costs of the action. This endorsement addresses the written submissions as to costs that were subsequently filed by the parties.

Liability for costs

[ 2 ] The moving defendants were entirely successful on the motion and as such, they would ordinary be entitled to costs. The plaintiff has not argued otherwise. I therefore confirm that the successful defendants are entitled to recover costs.

Scale of costs

[ 3 ] Subject to one comment I will make below concerning the hourly rates claimed on behalf of the defendant Kimberley, the claim for costs made on behalf of that party is advanced on a partial indemnity basis. I therefore intend to assess his claim for costs on the partial indemnity scale.

[ 4 ] With respect to the defendants Nerissa and Riad Sabha (the "Sabha defendants"), they seek costs on a substantial indemnity basis. They argue that the manner in which the plaintiff conducted the litigation warrants the sanction of a punitive order as to costs.

[ 5 ] Ordinarily, a costs award is made on a partial indemnity basis. Substantial indemnity costs orders are the exception and are reserved for situations in which the underlying conduct of a party warrants such a sanction (e.g. fraud) or where there has been serious misconduct during the course of a proceeding (e.g. material non-disclosure or a misstatement of facts on a motion for an injunction obtained without notice). The argument advanced by the Sabha defendants in support of their request for substantial indemnity costs is that the plaintiff delayed and displayed disregard for the process of the court by reason of her dilatory approach to prosecuting the action.

[ 6 ] While I certainly agree that the plaintiff adopted a dilatory approach to the prosecution of this action, she has already suffered the ultimate sanction for having done so: her action has been dismissed for delay. There is no suggestion that the allegations made in the proceeding were of such a nature as to warrant a punitive award of costs. I therefore decline the request of the Sabha defendants to award costs on a substantial indemnity basis. Instead, I will assess their costs on a partial indemnity scale, as well.

quantum of costs

(a) The defendant Kimberley

[ 7 ] The defendant Kimberley seeks fees and disbursements in the total amount of $40,693.02, including fees and disbursements of $16,478.86 on the motion to dismiss. This figure excludes the costs of the motion before Justice D.A. Wilson in respect of the motion before her in June 2008 restoring the action after it had been administratively dismissed. The total amount claimed in the action was approximately $52,500. It is therefore apparent that the costs claim of Kimberley approaches the total amount in issue. This is so despite the fact that the action never proceeded to discovery.

[ 8 ] As noted in my original endorsement, following the service of the statement of claim, Mr. Kimberley filed a statement of defence which was amended one month later. Since that date, with the exception of a 2006 amendment to the statement of claim to add Ms. Varjacic as a co-defendant on consent, no substantive steps were taken in the action. According to Kimberly's bill of costs, the only additional step to advance the proceeding taken by him was the preparation of an affidavit of documents.

[ 9 ] Despite the limited amount of work done, the Kimberley bill of costs claims approximately $17,800 for fees, independent of the motion. While I appreciate that some of this time spent involved monitoring the activity (or inactivity) on the file by plaintiff's counsel. The total time and hours appear to me excessive. Simply stated, a total of 86.2 hours for "initial review and correspondence" is, in my view, unreasonable and cannot be justified as an expense for time for which the plaintiff can be held responsible.

[ 10 ] A fundamental consideration in fixing costs is the reasonable expectation of the unsuccessful party. The overriding principle is reasonableness as applied to the factual matrix of the particular case. The quantum should reflect an amount the court considers to be fair and reasonable rather than any exact measure of the actual costs to the successful litigant. See Andersen v. St. Jude Medical, Inc. (2006), 2006 85158 (ON SCDC) , 264 D.L.R. (4 th ) 557 (Ont. Div. Ct.).

[ 11 ] In my view, having regard to the point to which the case advanced, the actual efforts on the part of counsel for Kimberley to get it to that stage, the previous decision by Justice D.A. Wilson and the reasonable expectation of the parties, an award of fees in the order of $5,000 is a fair and reasonable amount for the costs of the action apart from the costs of the motion.

[ 12 ] Turning to the motion itself, this motion to dismiss was not a complex one. The facts were relevantly straight forward as was the underlying legal arguments. Simply stated, over $15,000 in fees is unreasonable and excessive. Over 100 hours of professional time are claimed. While counsel for Kimberley may have chosen to spend that amount of time, in my view, the case did not require or warrant it and the plaintiff should not be required to pay for it.

[ 13 ] In my view, an award of costs for the motion within the expectation of parties would be $5,000.

[ 14 ] Turning to disbursements claimed, I agree with the submission of the plaintiff that mileage, parking and toll charges are not properly claimable in a proceeding where counsel practices within walking distance of the Court House and out-of-town travel was not required. Similarly, court fees for file retrieval – apparently related to other proceedings involving the plaintiff and/or her spouse – are not properly chargeable to the plaintiff in this action. I would therefore reduce the disbursements recoverable from the plaintiff by $602.

[ 15 ] I therefore award Kimberley costs as follows:

(a) Costs of the action $5,000.00

(b) Costs of the motion $5,000.00

Subtotal for fees $10,000.00

Allowance for GST & HST ___ 891.00

Subtotal for fess including taxes $10,891.00

Disbursements

(a) For action $875.07

(b) For motion $998.86

Subtotal for disbursements $1,873.93

Total fees and disbursements $12,764.93

[ 16 ] I therefore award Kimberley costs of the motion and the action in the total sum of $11,699.93.

(b) Costs of the Sabha defendants

[ 17 ] The Sabha defendants retained new counsel to address the motion. Their former solicitor had represented them and their late father.

[ 18 ] In respect of the previous retainer, the Sabhas provided copies of two lawyer's bills from their previous counsel. These accounts represented the solicitor-client charges from that lawyer for services performed by him in the preliminary stages of the litigation, including his initial meetings with them, his preparation of and filing of the statement of defence and his consideration of the motion to add the new party. In all, he charged total fees of $3,303, plus disbursements and GST.

[ 19 ] In relation of the motion, counsel for the Sabha defendants sought fees of $6,410 on a partial indemnity basis.

[ 20 ] In relation to the preliminary work performed by their prior lawyer, the time spent and fees charged appear to me reasonable. Given that the lawyer's bill to the client was approximately $3,300, I would award two-thirds of that or $2,200 plus GST of 6% or $132 for a total of $2,332. To that I would add disbursements of $133.75 inclusive of tax and I would fix the costs of the action for the Sabha defendants at $2,465.75.

[ 21 ] Turning to the costs of the motion, in their bill of costs, the Sabha defendants sought $6,410.52 on a partial indemnity basis, based upon a total of 33.6 hours of professional time. I note that these defendants retained new counsel to prosecute the motion for dismissal for delay and thus new counsel had to spend time getting up to speed and becoming familiar with the file and previous events. That learning time should not be at the expense of the plaintiff.

[ 22 ] With respect to the motion itself, my previous comments in respect of its complexity from a factual and legal standpoint need not be repeated. For these reasons, I conclude that an award of $4,000 for fees plus HST and disbursements would be a reasonable sum for the costs of the motion in favour of these defendants. This results in the following calculation:

Fees $4,000.00

HST __ 520.00

Subtotal $4,520.00

Disbursements $1,146.38

Total for motion $5,666.38

[ 23 ] I therefore award costs in favour of the Sabha defendants in relation to both the action and the motion as follows:

Action $2,465.75

Motion $5,666.38

Grand total $8,132.13

I therefore fix the Sabha defendants costs of the action and motion in the total sum of $8,132.13.

[ 24 ] All costs are payable forthwith.

Stinson J.

Date: September 26, 2012