ONTARIO
SUPERIOR COURT OF JUSTICE
2012 ONSC 989
COURT FILE NO.: CV-11-0258
DATE: 2012-02-10
B E T W E E N:
MAN-SHIELD (NOW) CONSTRUCTION INC.
Roderick W. Johansen , for the Plaintiff
Plaintiffs
- and -
RAINY RIVER DISTRICT SCHOOL BOARD
Donald Shanks , for the Defendants
Defendants
HEARD: February 9th, 2012, at Thunder Bay, Ontario
Mr. Justice F.B. Fitzpatrick
Endorsement Regarding Costs
[ 1 ] On January 13, 2012, I released my decision on a motion made in the above noted matter. Man-Shield (NWO) Construction Inc.’s. (“Man-Shield”) motion was dismissed. I invited costs submissions within 15 days of receipt of the reasons.
[ 2 ] Apparently counsel for Man-Shield may have received my reasons sometime after January 13, 2012. Counsel for the responding party, the Rainy River District School Board (the “Board”) took the position that the costs submissions of Man-Shield were submitted out of time and should not be accepted. In my view, counsel for Man-Shield has adequately explained the reason for the very brief delay in the filing of its costs submissions. In the circumstances I was prepared to accept Man-Shield’s submissions on costs as there was no prejudice to the Board. I have considered the costs submissions of both parties in making this endorsement.
[ 3 ] Although it was not expressly stated in Man-Shield’s notice of motion, the motion for all intents and purposes was a motion for partial summary judgment. Rule 20.06 deals with costs sanctions for improper use of the rule. The provisions of Rule 20.06 are as follows:
“The court may fix and order payment of the costs of a motion for summary judgment by a party on a substantial indemnity basis if,
(a) the party acted unreasonably by making or responding to the motion;
or
(b) the party acted in bad faith for the purpose of delay.”
[ 4 ] While it was true that counsel for the moving party was not able to point to any specific cases directly on point, I was referred by counsel for the Board to two authoritative texts on construction liens to assist in my disposition. The texts made it quite clear as to the law in regard to the matters raised in the motion. However, I accept the submission made by counsel for Man-Shield that he viewed the point as novel given the paucity of cases on point. I therefore do not find that Man-Shield acted unreasonably, or in bad faith or for the purpose of delay in making the partial summary judgment motion. However the motion was dismissed and in my view costs should follow the event. Accordingly, costs on a partial indemnity scale shall be awarded to the Board.
[ 5 ] In considering the submissions of the parties, I was mindful of the decision of the Ontario Court of Appeal in Boucher v. Public Accountants Council (Ontario), 2004 14579 (ON CA), 2004, 48 C.P.C. (5 th ) 56. In that decision, the Court of Appeal stressed the overriding principle of reasonableness, and the concept that costs are to be awarded from the perspective of the reasonable expectations of the losing party. While the court is not to be confined by the raw calculation of hours spent and rates charged to determine what is reasonable, in my view, in this case, it was helpful to review both bills of costs to assist in determining an appropriate amount of costs. It would have been more instructive had the parties submitted their bills of costs before I made my initial decision on the motion, and perhaps in the future course of this particular litigation, counsel may agree to do that.
[ 6 ] In reviewing the costs submissions of the parties it appears to me that counsel for the Board had a very good handle on the direction the court ultimately took on the motion and pointed it out to counsel for the moving party well before the motion was heard. However, I believe that the amount claimed for research by the Board is excessive given the answer to the essential question at issue was found in the basic texts. In my view, the expenditure of 53.4 hours by two lawyers researching this particular point was simply not warranted in the circumstances. It seems to me that about one third of that time would have been more than adequate given the computer research resources available to counsel. Also, I do not recall specifically needing to rely on the transcript of the cross-examination of Mr. Belluz at the hearing of the motion.
[ 7 ] Mr. Shanks’ partial indemnity rate at $291.45/hr and Mr. Ritson’s and Mr. Van Sickle’s partial indemnity rate at $134.00/hr are reasonable given their respective years of call and given the matters at issue in this motion. I believe the clerk time claimed at the partial indemnity rate of $103.85/hr is reasonable given the experience of the clerk, as were all the disbursements claimed by the Board.
[ 8 ] In all, considering the complexity of the matters at issue, the amount claimed and recovered and the conduct of the parties that tended to shorten or lengthen unnecessarily the duration of the proceeding, I find that costs fixed in the amount of $14,000.00 inclusive of costs and HST to be reasonable for this matter. This includes costs in respect of the preparation of materials relating to this endorsement. Accordingly, costs are awarded to the Board payable forthwith by Man-Shield in the amount of $14,000.00 inclusive of disbursements and HST.
“Original signed by”
The Hon. Mr. Justice F.B. Fitzpatrick
Released: February 10, 2012
2012 ONSC 989
COURT FILE NO.: CV-11-0258
DATE: 2012-02-10
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: MAN-SHIELD (NOW) CONSTRUCTION INC. Plaintiffs - and – RAINY RIVER DISTRICT SCHOOL BOARD Defendants ENDORSEMENT REGARDING COSTS Fitzpatrick J.
Released: February 10, 2012
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