ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-32479
DATE: 2012-11-19
B E T W E E N:
HARRY POHL
Marc Munro, for the Plaintiff
Plaintiff
- and -
WALTER PALISCA, PALCAM TECHNOLOGIES LTD., KARIN PALISCA, 1401763 ONTARIO INC., and PALCAM SOLUTIONS INC.
Hedy L. Epstein, for the Defendants
Defendants
Released: November 19, 2012
COSTS RULING
WHITTEN J.
[ 1 ] By ruling dated September 12, 2012, this court ruled in favor of the plaintiff with respect to a motion to strike various aspects of the statement of claim. The ruling concluded with the usual invitation to exchange cost submissions and to either resolve costs by way of agreement or to submit those submissions to the court for judgment. Those submissions have now been received along with the plaintiff’s bill of costs on a partial indemnity basis. The plaintiff seeks $12,816.24, inclusive of disbursements.
[ 2 ] No argument was made against the entitlement of the plaintiff to costs at this juncture.
[ 3 ] Costs are in the discretion of the Court, s. 131 of the Courts of Justice Act R.S.O. 1990, c. C.43. As with any discretion, it is to be exercised in a principled fashion. Rule 57.01 provides the broad framework in which costs are to be analyzed. The emphasis is on a) the nature or complexity of the issues at stake, b) the efficiency of a proceeding relative to the ultimate goal of resolution and c) the behavior of the parties. The latter presupposes that matters are to be resolved on their merits rather than being a function of attrition.
[ 4 ] Focusing on the issues at stake for the moment, it is observed that the motion, as it was originally framed, was a broad based attack on the validity of the torts of civil conspiracy, interference with economic relations and the responsibility of the defendant Karin Palisca personally. The latter pleading, it was suggested, was a presumptive piercing of the corporate veil. The actual argument of the motion was a truncated version of the motion. In essence, it was a request for particulars. This reduction, as it were, appeared to have been finally committed to by the day the motion was argued. That being said, counsel for the plaintiff would have had to prepare a broad based defence of torts which were complex. Facts would have had to be emphasized that justified the personal liability pled.
[ 5 ] It’s trite to say that the motion, if successful, would have caused a major redrafting of the statement of claim and a consequential shift in the litigation. Even though the argument was reduced to that of particulars, given the communication between the parties, counsel for the plaintiff would have been remiss to not prepare for the worst, the face value of the motion.
[ 6 ] Regrettably, the defendants did not move with alacrity. At a minimum, three months were lost to the extent that the defendants were noted in default. This was time that could have encompassed the exchange of pleadings, productions and steps taken towards scheduling examinations for discovery. In commercial matters, “time” is literally “money”. Satisfaction or defence of obligations is delayed; more legal fees expended.
[ 7 ] So, what is the fair picture of the costs incurred by the plaintiff? Keeping in mind this is not a case of substantial indemnity, an aspect of the focus is on a fair and reasonable amount to maintain a “level playing field”.
[ 8 ] One indicia is what the unsuccessful defendants would have sought themselves had they succeeded. One notes that there is a difference in the experience level for the defendants. It may be that a less experienced counsel for the plaintiff had to expend more effort than that expended by counsel for the defendant to achieve the breadth of understanding of his opponent. No doubt his client would have been disappointed if counsel had not risen to the occasion. In any event, counsel for the plaintiff charges at a modest hourly rate. That rate, for possibly a greater number of hours than the more experienced counsel, balances out the greater rate charged by the latter. In a way, what the more experienced counsel would have charged if successful gives an indication “the value” of the services performed by counsel for the plaintiff.
[ 9 ] The predominant part of the bill of costs is the efforts of counsel for the plaintiff. The hours expended are reasonable. Yes, counsel would have had to research the torts in issue before the issuing of the statement of claim. That research, no doubt, dictated the nature and structure of the statement of claim. However, a challenge as to the sufficiency of a pleading would necessitate a review, potentially a broader base of research, and an effort to frame what was pled in the context of precedent.
[ 10 ] Counsel for the defence argues that some of the services performed by the law clerks / legal assistant would be invariably secretarial in nature. One muses, if there is such a creature as a legal secretary in this day and age. Having so mused, there is always an element of basic overhead in the operation of a law practice which cannot be recouped from the other side.
[ 11 ] Having considered the submissions of both sides and what is stated above, and a review of the bill of costs submitted, costs payable by the defendants are fixed at $11,000 inclusive of disbursements and H.S.T., payable forthwith.
Whitten J.
Released: November 19, 2012
COURT FILE NO.: 12-32479
DATE: 2012-11-19
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HARRY POHL Plaintiff - and – WALTER PALISCA, PALCAM TECHNOLOGIES LTD., KARIN PALISCA, 1401763 ONTARIO INC., and PALCAM SOLUTIONS INC. Defendants COSTS RULING Whitten J. ACRW // dm
Released: November 19, 2012