Superior Court of Justice - Ontario
COURT FILE NO.: CV-08-00354702-0000
DATE: 20130424
RE: 1004964 ONTARIO INC., carrying on business as t.e.s.t., Plaintiff/Defendant by Counterclaim
AND:
AVIYA TECHNOLOGIES INC., Defendant/Plaintiff by Counterclaim
BEFORE: T. McEwen J.
COUNSEL:
Joy Casey, for the Plaintiff/Defendant by Counterclaim
M. Abradjian and R. Kis, for the Defendants/Plaintiff by Counterclaim
HEARD: November 19, 20, 21, 22, 23, 26 and 27, 2012
Costs and prejudgment interest ENDORSEMENT
[1] This non-jury trial was heard by me between November 19 and 27, 2012.
[2] After the conclusion of trial I released written reasons awarding the plaintiff the amount of $82,964.60 for damages plus prejudgment interest and costs. The defendant’s counterclaim was dismissed.
[3] The parties have been unable to agree upon the issues of costs and prejudgment interest, and have provided me with written submissions which I have reviewed.
Costs
[4] There were no offers to settle from either the plaintiff or the defendant that were bested at trial that would invoke the provisions of R. 49.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[5] This being the case, the plaintiff is entitled to its costs on a partial indemnity basis.
[6] The plaintiff seeks $350 per hour while the defendant submits that the amount of $240 would be appropriate. The plaintiff’s solicitor’s actual rate is $400 per hour.
[7] In the circumstances, I find that the amount of the $300 per hour is reasonable which constitutes 75% of the actual rate. In my view, to award less would be overly punitive to the plaintiff which recovered 84% of the amount claimed and succeeded in having the counterclaim dismissed. It is also proportionate to the complexity of the case and the amount in issue.
[8] I reviewed the hours spent preparing the matter for trial (69.3 hours) and find that they are reasonable given the complexity of the matter in issue.
[9] Although the defendant takes issue with the length of trial I do not find that the plaintiff did anything to exacerbate the length of the trial. The plaintiff’s case went on for approximately two days, which is reasonable. I would allow a counsel fee for the 6 ½ days spent at trial of $2,400 per day ($300 x 8 hours).
[10] Insofar as disbursements are concerned, the defendant does not take any issue with the disbursements save and except the cost of mediation, which it submits it should not pay since the plaintiff failed to consider any compromised settlement. This argument has no merit since the amount awarded to the plaintiff exceeded any offers made by the defendant.
[11] Based on the above, I would therefore award the plaintiff costs as follows:
Fees:
$20,790.00
Counsel fee for trial:
15,600.00
Total plus HST:
41,120.70
Disbursements (includes HST):
4,532.49
Grand total: plus HST with respect to fees only
$45,653.19
Prejudgment Interest
[12] The plaintiff seeks prejudgment interest from May 13, 2008, when the claim was issued, to February 4, 2013, when the judgment was rendered. The defendant does not take issue with the length of the prejudgment interest sought but rather submits that the amount sought, 4.3%, should be reduced to 1.36% which is the average of the prejudgment interest rates between May 13, 2008 and February 4, 2013. The defendant submits that I should take into account the provisions of subsection 130(2)(a), (e) and (f) of the Courts of Justice Act, R.S.O. 1990, Chap. C. 43. I see no reason to depart from the usual practice of employing the usual rate, in this case, 4.3%. I do not find that there are any special circumstances to justify departing from it. Specifically, I did not find that the plaintiff delayed the duration of the proceedings. It also recovered approximately 84% of the amount it claimed. Lastly, the changes in market interest rates have not fluctuated wildly so as to constitute special circumstances.
[13] Based on the above, I find that the plaintiff is entitled to prejudgment rate for the time sought in the amount of 4.3%.
T. McEwen J.
Date: April 24, 2013