Deschene v. Dr. Khurram Ashraf Dentistry, 2012 ONSC 5856

Citation: Deschene v. Dr. Khurram Ashraf Dentistry, 2012 ONSC 5856

Court File No.: DC-16-11

Date: 2012-10-15

Superior Court of Justice - Ontario

Re: Jennifer Dechene, Plaintiff/Respondent

And: Dr. Khurrum Ashraf Dentistry Professional Corporation, Defendant/Appellant

Before: The Honourable Mr. Justice D. A. Broad

Counsel: Pamela Krauss, for the Defendant/Appellant Robert A. Konduros, for the Plaintiff/Respondent

Costs Endorsement

[1] In my Endorsement released August 9, 2012 dismissing the appeal, I invited counsel to make written submissions respecting costs. Those submissions have now been received and the following is my disposition respecting costs.

[2] The counsel for the respondent/employee points to the principle of indemnity, arguing that the respondent should not receive less of the award she received at trial as a result of being put to the expense of responding to a clearly unmeritorious appeal. He seeks costs in the sum of $11,280.00 in respect of fees, plus disbursements and HST, totalling in all the sum of $12,915.90. The fee claim is based upon 28.2 total hours at an hourly rate of $400.00.

[3] Counsel for the appellant/employer submits that it was partially successful, in that, on appeal, the finding at trial that there had been a constructive dismissal was not upheld, notwithstanding that the result was the same, based upon the alternate ground that there had been an actual wrongful dismissal of the plaintiff. On this basis she argues that each party should bear their own costs of the appeal. In the alternative, she argues that the hours claimed in the respondent’s costs outline are excessive and should not exceed 20 hours, as is the hourly rate which should not exceed $320.00. The Appellant argues that a costs award in the sum of $7,300.00 inclusive of HST and disbursements is appropriate.

[4] Under section 131 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, the court has discretion with respect to the costs of and incidental to a proceeding. Rule 57.01 sets forth the factors which the court may consider in the exercise of that discretion. Included in the factors are the principle of indemnity, as well as the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding under consideration.

[5] The overriding principle in fixing costs is fairness and reasonableness (see Larcade v Ontario (Ministry of Community and Social Services), 2006 17943 (ON SCDC), 211 O.A.C. 247 (Div. Ct.)).

[6] It is noteworthy that the Bill of Costs submitted by counsel for the Appellant references a total time involvement on her part of 5.4 hours as well as clerk’s time of 5 hours, which should act as some measure of the reasonable expectations of the unsuccessful party.

[7] I do not find any merit in the argument that each side should bear their own costs. The respondent was entirely successful on the appeal in that the damage award in her favour was upheld.

[8] Although the respondent seeks costs on a full indemnity basis, I do not find that there are any factors present which would justify departure from the normal rule favouring a cost recovery on a partial indemnity basis.

[9] In the circumstances I do not find 28.2 hours to be excessive. However, I would not allow a partial indemnity hourly rate of $350.00, being the maximum for counsel with more than 20 years experience in the guideline published by the Rules Committee. A small claims court appeal would not, in my view, attract the maximum, absent unusual circumstances.

[10] I would also not allow the claim for disbursements for document filing and travel/mileage as they are not provided for in the tariff.

[11] I therefore fix the respondent’s costs of the appeal, payable by the appellant, at $8,500.00 plus HST.

D. A. Broad J.

Date: October 15, 2012