Ontario Superior Court of Justice

Court File No.: CV-09-0017-00
Date: 2012-09-28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

BALE-EZE INDUSTRIES INC. and GARY WALT Plaintiffs – and – FRAZIER INDUSTRIAL CO. INC., FRAZIER INDUSTRIAL CO. LTD., c.o.b. as FRACAN and WILLIAM MASCHARKA Defendants

J. David Ross, for the Plaintiffs

John Mastorakos, and Anya-Deane Best, for the Defendant Mascharka.

Heard: In writing

COSTS DECISION

T.D.RAY, J

[ 1 ] I granted the defendant’s motion under Rule 21 of the Rules of Civil Procedure to dismiss the plaintiff’s action on the ground that Ontario was not the proper jurisdiction, August 28, 2012, and invited written costs submissions if the parties were unable to agree ( 2012 ONSC 4892 ). I have now received written submissions, but only from the defendant. The 20 day period given for the time for submissions has long expired and I have heard nothing further from counsel. The plaintiff would be well aware that the usual practice is to grant costs to the successful party, and to fix the costs.

[ 2 ] The defendant’s position is that he is the successful party and entitled to his costs. I consider the defendant’s bill of costs to be within the range that one would expect. The time is accounted for and the hourly rates appear to be appropriate to the seniority and experience of counsel. The detailed time of approximately 65 hours for two counsel and a clerk, includes cross-examinations on affidavits, pleadings, and adjournments plus research, preparation for the motion, and counsel fee. The time of 3.3 hours for the clerk is properly overhead and included in counsel’s hourly fee. After deduction of the clerk’s time the total fees total $19,700.00. The disbursements (and HST on the disbursements) total $2351.79.

[ 3 ] The defendant has addressed the various rule 57 factors in his written submissions. There are no factors that suggest anything other than partial indemnity costs which I consider to be approximately 55% of a reasonable full indemnity bill – in this case $10,835.00 which with HST and disbursements bring the total to $14,595.34.

[ 4 ] The defendant is therefore awarded his costs of this motion and of the action fixed at $14,595.34 payable by the plaintiffs.

Honourable Justice Timothy Ray

Released: September 28, 2012

COURT FILE NO.: CV-09-0017-00

DATE: 2012-09-28

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: BALE-EZE INDUSTRIES INC. and GARY WALT Plaintiffs – and – FRAZIER INDUSTRIAL CO. INC., FRAZIER INDUSTRIAL CO. LTD., c.o.b. as FRACAN and WILLIAM MASCHARKA Defendants COSTS DECISION Honourable Justice Timothy Ray

Released: September 28, 2012