ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-10-14951
DATE: 20130321
BETWEEN:
YULI ZHANG and CHANGCHUN XING
Plaintiffs
– and –
STEPHEN SHANFIELD
Defendant
Yuli Zhang and Changchun Xing, acting in person
Mason Greenaway, for the Defendant
HEARD: Written submissions
COSTS ENDORSEMENT
gates j.:
[1] This matter involved a summary judgment application by the defendant Stephen Shanfield to dismiss the plaintiffs’ action.
[2] Following a lengthy hearing over eight days in which I heard argument and submissions from both parties, I granted the application and dismissed the plaintiffs’ action, with costs. While I received the defendant’s submission as required, I have received nothing from the plaintiffs and accordingly I proceed to prepare these reasons without them.
[3] While the matter was neither overly complicated nor complex, however, part of the reason for the length is accounted for by the fact that the plaintiffs were assisted by a Mandarin speaking Chinese translator whose services were of great assistance to the court during the eight days of hearing.
[4] Before assessing the quantum of the defendant’s costs, I wish to make a few comments about principles relating to assessments of costs.
[5] Any discussion on costs engages s. 131 of the Courts of Justice Act which provides that the costs are in the discretion of the court and which may determine by whom and to what extent they shall be paid and, Rule 57 of the Rules of Civil Procedure which lists a number of factors that might be considered in addition to the result achieved. However, by rule 57.01(4) none of these factors affect the authority of the court under s. 131 in exercising its discretion in the award of the ultimate costs.
[6] It is perhaps trite to say that the purpose of costs is to indemnify successful litigants for the cost of their litigation, to encourage settlements and to discourage and sanction inappropriate behaviour by litigants.
[7] In general terms there are three levels of costs indemnification, ranging from partial indemnity to substantial indemnity and lastly, full indemnity, which represents a complete indemnification at actual rates.
[8] Full indemnity costs have been held to be appropriate in circumstances far more exceptional than those at hand. To justify the application of the substantial indemnity scale where one would need to consider, for example, whether there are unsubstantiated allegations of dishonesty or where there is conduct of a party that is “reprehensible, scandalous or outrageous”. This is not the case here (see Barluk cob Wyrd Sisters v. Campbell (2009), 66 C.C.L.T. (3d) 160).
[9] In assessing the appropriate amount of costs to be awarded I have regard to the following factors in rule 57.01:
(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 the duration of the proceeding;
[10] That said, in my view costs will be assessed in this proceeding on the partial indemnity rate.
[11] Having said that, however, I am not overlooking the fact that the plaintiffs, separate and apart from the translation issue, were responsible for a good deal of this lengthened proceeding but I do acknowledge that being self-represented and untrained as lawyers, this inevitably added to the time required to hear the matter.
[12] However, I also take into account the fact that on more than one occasion they made accusations and allegations about Mr. Shanfield which were unfair and bordered on being malicious. They would not have been made by a practicing lawyer without serious consequences being threatened or applied.
[13] Therefore, in the final analysis, and in exercise of my discretion, I choose to assess the defendant’s costs on the partial indemnity scale.
[14] I note that Mr. Greenaway is a 1978 call to the Bar, with 35 years experience and junior counsel who was called in 2009 has four years experience.
[15] Given Mr. Greenaway’s extensive experience as a first-rate counsel I find his actual rate of $325 per hour and his partial indemnity rate of $275 per hour to be eminently reasonable. Similarly, I accept Mr. Wydrzynski’s rates of $185 and $140 per hour, respectively.
[16] Similarly, I have reviewed the disbursements including GST of $2,160.28 and find these to be reasonable and appropriate.
[17] I have also reviewed the description of the services provided by Mr. Greenaway’s office as counsel for the defendants including the breakdown of each of the components of the case and I am satisfied that time expended is likewise reasonable.
[18] Therefore, based upon my conclusion as to the acceptability of the time spent and the hourly rates charged as detailed in counsel’s written submission, I conclude that the total fees owing and payable to the defendant Stephen Shanfield by the plaintiffs are as follows:
i) Fees - $43,833.00
ii) HST @ 13% - $5,698.29
iii) Disbursements inclusive of HST - $2,160.28
For a total of $51,691.57.
[19] Therefore, there will be a judgment for the defendant Stephen Shanfield for costs against the plaintiffs in this matter of $51,691.57.
Original signed by Justice Gates
Richard C. Gates
Justice
Released: March 21, 2013
COURT FILE NO.: CV-10-14951
DATE: 20130321
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
YULI ZHANG and CHANGCHUN XING
Plaintiffs
– and –
STEPHEN SHANFIELD
Defendant
costs endorsement
Gates J.
Released: March 21, 2013