ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-09-539
DATE: 2013-04-23
B E T W E E N:
LYNDA POWLESS
Howard E. Staats, Q.C., Counsel of the Plaintiff
Plaintiff
- and -
CLAUDINE VANEVERY-ALBERT AND SIX NATIONS OF THE GRAND RIVER BAND OF INDIANS
Jack Fitch, Esq., Counsel of the Defendants
Defendants
COST ENDORSEMENT
Crane, J.
[1] In my reasons for judgment I expressed an interest in awarding the plaintiff her full costs of this action – to in effect add as damage that portion of full costs that exceeds the sum of costs fixed under the law of costs. In this case, the difference between the plaintiff’s partial indemnity costs and the sum that would fully indemnify the costs the plaintiff would reasonably pay to her own counsel(objectively determined). Plaintiff’s counsel has confused this scale of costs with substantial indemnity costs.
[2] After considerable research, I conclude that the law of costs is not subsumed by the law of damages.
[3] Accordingly I now fix the costs of this action under the discretion given the trial judge pursuant to the Courts of Justice Act, s. 131; Rules 49, 57, 76.13, 1.03 and the jurisprudence.
[4] There are no relevant offers to settle. The plaintiff has had success within the monetary jurisdiction of this Court.
[5] I grant the plaintiff her costs of the action.
[6] I have found that the defendant abused her occasion of qualified privilege with this finding leading to the judgment. The defendant’s motivation in publishing was on the merits in the action, not trial conduct.
[7] I find it reasonable, indeed necessary, to have conducted this action under ordinary procedure, Rule 76.13(3).
[8] I conclude that the scale of costs is on the partial indemnity scale.
[9] I accept the submissions of the plaintiff’s counsel that the action was complex and important. I find that Mr. Staats exercised the best qualities of senior counsel. The issues were well focused. The action was economically litigated as to the number of witnesses and the examination of witnesses.
[10] I conclude that counsel has earned the higher range of hourly rates pursuant to the factors of Rule 57.01(1).
[11] The defendants have not volunteered their costs of this action in support of a submission of reasonable expectations.
[12] I then turn now to the plaintiff’s Bill of Costs. Overall, I find the work done and the time taken to be reasonable for this case.
[13] In fixing costs I generally apply the rate of $300.00 per hour with reductions for those services that might otherwise be performed by personnel of less experience and qualifications than Mr. Staats.
[14] I allow counsel fee at trial as claimed of $9000.00.
[15] In the result, the plaintiff’s costs are fixed in the sum of $38,000.00 for fees and the sum of $1,219.70 for disbursements plus applicable H.S.T. on fees and disbursements.
Crane J.
COURT FILE NO.: CV-09-539
DATE: 2013-04-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LYNDA POWLESS
PLAINTIFF
- and –
CLAUDINE VANEVERY-ALBERT AND SIX NATIONS OF THE GRAND RIVER BAND OF INDIANS
Defendants
COST ENDORSEMENT
CRANE J.
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Released: April 23, 2013