Court File and Parties
Bracebridge Court File No.: CV-12-00000009-00
Date: 20121029
Superior Court of Justice - Ontario
Re: Deborah Stephenson and Stephen Woodrow, Plaintiffs
And: The Corporation of the Town of Gravenhurst and David Eidsness, Defendants
Before: The Hon. Madam Justice S.E. Healey
Counsel:
Applicants Self Represented
M. Miller, for the Defendant/Moving Party
Heard: By written submissions
Costs Endorsement
[ 1 ] This endorsement follows my ruling on a motion brought by the Corporation of the Town of Gravenhurst (the "Town") and David Eidsness for an order for summary judgment, whereby the court dismissed the claim ( Stephenson v. Corporation of the Town of Gravenhurst , 2012 ONSC 5368 ).
[ 2 ] Both parties were given a deadline by which to provide written submissions on costs; the plaintiffs did not file any submissions.
[ 3 ] In determining the cost of the motion, the jurisdiction of the court is set out in section 131(1) of the Courts of Justice Act , R.S.O. 1990 c. C.43, as follows:
131 (1) Costs - Subject to the provisions of an Act or rules of court, the cost of and incidental to a proceeding or a step in the proceeding are in the discretion of the court, and the court may determine by whom and to what extent the cost shall be paid.
[ 4 ] Also, Rule 57.01(1) of the Rules of Civil Procedure , R.S.O. 1990, Reg. 194 outlines the various factors that a court may take into account in exercising its discretion to award costs.
57.01(1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and
(i) any other matter relevant to the question of costs.
[ 5 ] This was the third successful motion for summary judgment brought by the Town in respect of three successive actions commenced against it by the plaintiffs. As explained in my reasons, I found that the third action was based upon the same cause of action as the previous two, and dismissed it on the basis of res judicata and on the basis of the Limitations Act, 2002 , S.O. 2002, c. 24 . The full history of the proceedings taken by the plaintiffs against the Town was outlined in my endorsement with respect to this motion and so will not be repeated here.
[ 6 ] I have reviewed the Bill of Costs of the Town related to this motion. Mr. Miller is a lawyer of 37 years experience whose hourly rate is $350. The partial indemnity rate of $300 used in the Bill of Costs is less than the maximum rate stated by the Practice Direction established by the Costs Subcommittee of the Civil Rules Committee. Beyond that, the Rules require only that partial indemnity costs be awarded in accordance with Part I of Tariff A. Tariff A mandates that counsel fees be determined in accordance with s. 131 of the Courts of Justice Act and the factors set out in Rule 57.01(1). Wide discretion in fixing costs therefore remains with the court, bearing in mind the principles enunciated in the leading Ontario cases such as Anderson v. St. Jude Medical Inc . (2006), 2006 85158 (ON SCDC) , 264 D.L.R. (4th) 557 (Ont. Div. Ct.), Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA) , 71 O.R. (3d) 291 (C.A.), and Clarington (Municipality) v. Blue Circle Canada Inc ., 2009 ONCA 722 , 100 O.R. (3d) 66.
[ 7 ] The fees and disbursements sought by the Town are well within the range expected of a motion of this nature, where a factum and authorities were required, together with an extensive affidavit outlining the history of the proceedings taken by the plaintiffs.
[ 8 ] The costs sought by the Town would have to be within the reasonable expectation of the plaintiffs, as costs in this range have been awarded against them in the past when they have unsuccessfully defended motions.
[ 9 ] This motion was important to both parties given the significant relief sought, and the Town was wholly successful.
[ 10 ] Also to be considered is that the plaintiffs made numerous allegations against the Town and its officials, including bad faith, conspiracy and misrepresentation. Such allegations have been present in each of their successive claims. The plaintiffs’ evidence in support of such allegations has been examined by the court on previous occasions, and has found to be lacking or without merit. The plaintiffs filed no responding material to this motion for summary judgment.
[ 11 ] Weighing these considerations in the context of the provisions of Rule 57.01(1), I find that it would be fair and reasonable to award costs on a partial indemnity basis in the amount sought by the Town.
[ 12 ] This court orders:
The plaintiffs shall jointly and severally pay to the Town the amount of $10,270 inclusive for the cost of this motion, within 30 days;
The approval by the plaintiffs of the formal order relating to this motion is dispensed with.
HEALEY J.
Date: October 29, 2012