Court File and Parties

COURT FILE NO.: 06-CV-315145PD2
DATE: 2012-11-01
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DEVANSHI BHATT, a minor by her Litigation Guardian, Tushar Bhatt, TUSHAR BHATT, personally and NIMISHA BHATT

AND:
KWOK-CHING CHAN, LAN-FEN CHAN, GENERAL COMPUSOFT CO. LTD., VINAY RATHOD, SUCHETA RATHOD, JOHN DOE SUPERINTENDENT and JOHN DOE PROPERTY MANAGER

BEFORE: The Honourable Mr. Justice D.A.BROAD

COUNSEL:
Nigel G. Gilby for the Plaintiffs

Jonathan A. Swartzman for the Defendants KWOK-CHING CHAN and LAN-FEN CHAN

COSTS ENDORSEMENT

[ 1 ] In my Endorsement released September 17, 2012 I invited counsel to make written submissions with respect to costs, which have now been received. The following is my disposition respecting costs.

[ 2 ] The Plaintiffs seek costs of the motion on a partial indemnity basis, totaling $23,798.70 (as disclosed in its Costs Outline), comprised of $20,609.50 in respect of fees, $509.96 for disbursements and HST in the sum of $2,679.24. The Chan Defendants (hereafter the “Defendants”) submit that the costs of the motion should be fixed in the sum of $4,000.00 and made payable to the Plaintiffs in the cause. The Defendants submit that it was reasonable for them to bring the motion. It is not clear what is to be taken from this submission, as the Defendants do not suggest that there be no award of costs in favour of the successful Plaintiffs. I would observe that it is not helpful, and likely not appropriate, to make reference to an opinion expressed by another judge on a scheduling conference respecting the likely outcome of the motion. The full context surrounding the expression of that opinion, and what information was before him at that time, are not clear. It is up to the judge hearing the motion to make the finding based upon the material presented by the parties.

[ 3 ] Rule 57.03(1) requires the court to fix the costs of a contested motion and order them to be paid within 30 days unless the court is satisfied that a different order would be more just. The suggestion of the Defendants that the costs should be to the Plaintiffs in the cause is based on the fact that liability is a “hugely contested issue” and it is not clear that the Plaintiffs will be successful against the Defendants. The fact that liability will be disputed at trial is not, in my view, sufficient to displace the normal requirement that the costs of a contested motion be determined and paid within 30 days.

[ 4 ] The factors to be considered by the court, in exercising its discretion on costs under Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, are set forth in Rule 57.01(1). Of particular relevance are firstly, the principle of indemnity referred to in subparagraph (0.a) and secondly, the question of what the reasonable expectation of an unsuccessful party would be, as referred to in subparagraph (0.b).

[ 5 ] As emphasized by the Court of Appeal in the case of Boucher v. Public Accountants Council (Ontario) (2004) 2004 14579 (ON CA) , 71 O.R. (3d) 291, the overriding principle guiding the court in fixing costs is that of reasonableness. At paragraph 38, Armstrong, J.A. confirmed that in deciding what is fair and reasonable, the expectation of the parties concerning the quantum of a costs award is a relevant factor.

[ 6 ] In the more recent case of Davies v. Clarington (Municipality) 2009 ONCA 722 the Court of Appeal noted with approval the statement of principles to be considered in awarding costs enunciated by the Divisional Court in Andersen v. St. Jude Medical Inc. (2006), 2006 85158 (ON SCDC) , 264 D.L.R. (4 th ) 557, as follows:

1. The discretion of the court must be exercised in light of the specific facts and circumstances of the case in relation to the factors set out in rule 57.01(1); 2. A consideration of experience, rates charged and hours spent is appropriate, but is subject to the overriding principle of 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; 3. The reasonable expectation of the unsuccessful party is one of the factors to be considered in determining an amount that is fair and reasonable; 4. The court should seek to avoid inconsistency with comparable awards in other cases; and 5. The court should seek to balance the indemnity principle with the fundamental objective of access to justice.

[ 7 ] In keeping with the principles set forth above, I do not propose to undertake a line-by-line analysis of the Costs Outline submitted by counsel for the Plaintiffs. However, in carrying out a consideration of what is fair and reasonable, and what might be expected by an unsuccessful party in a matter of this nature, it is noted that the Plaintiffs had two counsel attend on the cross-examination of Ms. Bent on her affidavit, as well as on argument of the motion, although only Mr. Lamers made submissions. Although the marshalling of legal resources to this extent may be perfectly justified in relation to a law firm’s retainer with its clients, when viewed from the perspective of the reasonable expectation of an unsuccessful party for the purpose of fixing costs, it cannot be considered fair and reasonable on a motion of this nature.

[ 8 ] Although the hourly rates of the various Plaintiffs’ counsel are within the guidelines promulgated by the Rule Committee, they are generally at the high end of the ranges. In my view, rates at the higher end of the ranges in the suggested guidelines should be reserved for more complex matters. Although this motion was hotly contested, and was evidently deemed to be important by both parties, it was not dispositive of the action and can be characterized as being of relative moderate complexity. I find that appropriate hourly rates for Plaintiffs’ counsel for the purposes of this procedural, non-dispositive motion to be $250.00 for each of Mr. Gilby and Mr. Lamers, $200.00 for Ms. Bent and $150.00 for Mr. Dawson. I would allow the clerks’ time and proposed rate in full.

[ 9 ] In consideration of the overriding principle of reasonableness, including an application of lower partial indemnity rates for Plaintiffs’ counsel, and accounting for some duplication of lawyers’ time, I would set the fee portion of the Plaintiffs’ costs at $ 12,500.00 plus HST.

[ 10 ] For disbursements, I would not allow the items for courier, facsimile, parking, postage, scanning and long-distance telephone, as not being contemplated by the applicable tariff, resulting in assessable disbursements of $326.98 plus HST totaling $369.49.

[ 11 ] I therefore order that the Chan Defendants pay to the Plaintiffs $14,494.49 in respect of costs of the motion, inclusive of fees, disbursements and HST, within 30 days hereof.

D. A. Broad J.