ONTARIO SUPERIOR COURT OF JUSTICE
oshawa COURT FILE NO.: FC-10-1395-00
DATE: 2013-01-11
BETWEEN
Sheri Lynn Keller
Applicant
— and —
Michael John Anthony Keller
Respondent
COUNSEL:
Pierre J.-L. Plourde, for the applicant
Michael John Anthony Keller not participating.
HEARD: Written Costs Submissions in Chambers
Timms J.
COSTS ENDORSEMENT
[1] Counsel for the applicant has now submitted his bill of costs as per my endorsement of November 16, 2012.
[2] The applicant seeks the sums of $7,195.63 for fees, $1,466.56 for disbursements, and $1,126.27 for HST. Together these total $9,788.27.
[3] The bill of costs includes fees for two lawyers, a paralegal, a law clerk, a student (not a law student), and a secretary.
[4] For reasons that I do not understand, counsel has billed everyone’s time at Ontario Legal Aid rates. Unless the Legal Aid Services Act has been amended, a judge is not entitled to know that someone is receiving services pursuant to the Legal Aid Plan.[^1] Beyond that, I do not understand why counsel would seek to be compensated only at Legal Aid rates. There is after all a huge discrepancy between those rates and normal rates.
[5] I am also troubled by the inclusion of time billed by persons other than lawyers. I have noticed that more and more I am receiving submissions for costs that seek compensation for amounts for such persons. This particular case is frankly the most extravagant that I have seen so far. I decided to do some research of my own. As a result I discovered the case of Beerthuizen v. West Arthur Place, a 2008 decision of our colleague Justice H. Pierce.[^2]
[6] Justice Pierce wrote the following:
Except as authorized by the Rules of Civil Procedure or the jurisprudence, claims for a lawyer's staff fall under his hourly rate which contemplates overhead. Overhead includes staff. Counsel ought not to enhance his true hourly rate by hiving off overhead costs and charging staff time separately. This "pyramid technique" of claiming costs is not contemplated either by the rules or by the jurisprudence and can only serve to inflate a bill of costs beyond what is reasonable to recover from the opposing party.[^3]
[7] I believe that the reasoning of Justice Pierce has much to recommend it. In my view, all individuals, other than lawyers and articling law students, should be considered as part of the office overhead. It should then be up to the lawyer to determine his or her hourly rate, taking his or her overhead into consideration.
[8] I am prepared to make an exception in this case based on my understanding that Legal Aid will pay for the time of a law clerk and a paralegal. As far as I know, Legal Aid will not pay for a secretary or a student other than an articling student.
[9] For the reasons set out by counsel in his submissions, I agree that the applicant is entitled to full-indemnity based on the Legal Aid tariff as submitted. What I do not agree with is the suggestion that the full amount awarded to the applicant by Justice Lack on June 14, 2012 be deducted. This is not reasonable given that Justice Lack did not award costs on that day based on the Legal Aid tariff. In other words, counsel does himself a great disservice by his request.
[10] Looking at the bill of costs in relation to the motion on June 14, 2012, I see that the time claimed at Legal Aid rates only comes to $220.51. That amount is to be deducted from the total fees of $7,195.63, leaving $6,975.12. The HST is therefore reduced to $1,097.42. The final total is therefore $9,539.10. Order to go in that amount.
The Honourable Mr. Justice D. Roger Timms
DATE RELEASED: Friday, January 11, 2013.
[^1]: Legal Aid Services Act, 1998: Administration of System for Providing Legal Aid Services, O Reg 106/99
[^2]: Beerthuizen v. West Arthur Place, 2008 716 (ON SC), [2008] O. J. No. 110 (Ont. S.C.J.).
[^3]: Supra, at paragraph [16].