ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-08-70
DATE: 20130604

BETWEEN:

ELEANOR M. LEWIS

Plaintiff (Responding Party)

– and –

WEISMILLER LUMBER LIMITED, TRADITIONAL ROOFWORKS INC., PINE ROOF CANADA INC., WAYNE IRWIN and SCOTT DORAN

Defendants (Moving Party)

D.A. Morin, for the Plaintiff as Responding Party
S.R. Fairley, for the Defendant Weismiller Lumber Limited as Moving Party

HEARD: by written submissions

REASONS FOR DECISION ON COSTS

R. MacKINNON, J.

[1] The parties have been unable to agree on costs. I have received and fully considered their written submissions. The defendant Weismiller is entitled to its costs both of the motion for summary judgment and the action. The parties’ dispute centers on quantum.

[2] The plaintiff issued her Statement of Claim in March 2008. In September of that year Weismiller delivered its Statement of Defence, pleading that the plaintiff’s claim was statute barred. Weismiller knew after October 2009 that the two corporate defendants were no longer in operation and had been dissolved. It knew as well that the plaintiff’s position was that the installation of the shingles by the defendant Doran was not deficient. It also knew that the plaintiff’s position was that its liability arose because of the plaintiff’s purchase from Weismiller of a defective product.

[3] The plaintiff now argues on the issue of costs that Weismiller participated fully in this proceeding for years – including preparing and attending on initial discoveries, the further discovery of Scott Doran, and the pretrial – and then only brought this summary judgment motion a week before the initial scheduled trial date in November 2012. The plaintiff accordingly urges that this defendant’s costs should be limited to that necessary to file its defence and bring the summary judgment motion, or possibly to also include the discoveries. I disagree.

[4] It was not Weismiller that started this action. The plaintiff did. It was open to the plaintiff at any time to seek to discontinue or dismiss its action against Weismiller, and to deal with the issue of Weismiller’s costs. Discoveries were not completed until October 2011.

[5] By the Spring of 2012 Weismiller asserts that it determined that a motion for summary judgment would then be more cost effective than a trial. It sought leave to bring that motion as the action had been set down for trial.

[6] When the action was initially commenced and defended, Rule 20 had not been amended and had been applied in a restricted manner. Counsel for Weismiller now argues, and I find, that once the summary judgment rule was amended and case law evolved interpreting it, Weismiller was then in a position to reasonably contemplate bringing a summary judgment motion. It was, in these circumstances, entirely appropriate to first complete discoveries before contemplating such a motion. There is no reason on this record to limit Weismiller’s entitlement to costs of the action because of its alleged failure to bring its motion before it did. In these circumstances Weismiller acted reasonably in the defence of the claim.

[7] Weismiller seeks costs on a substantial indemnity basis, arguing that it made offers to settle. As I am required to do under rule 57.01, I have considered the offers to settle and note that none impacted Rule 49. Weismiller’s June 6, 2006 offer was not an offer of payment to the plaintiff but rather an offer to contribute contingent upon the plaintiff retaining the defendant Traditional Roofworks Inc. to repair the roof at a cost of almost $40,000. Weismiller’s 2010 offer was open for acceptance only between January 7 and 29, 2010. This is not a case where an award of substantial indemnity costs are appropriate. Partial indemnity costs are ordered.

[8] I have considered all of the rule 57.01 factors including the principle of indemnity, importance of issues, time spent, expenses paid and all other relevant matters. The summary judgment motion was relatively short and of average complexity. Both counsel presented their cases in a focused, well organized fashion.

[9] In fixing costs, a judge is not assessing costs as if he or she were performing the function of an assessment officer. The object of fixing costs is to avoid the delay and added costs of a full assessment. A court determines what the services devoted to the proceedings are worth. The incurring of costs and time spent by counsel in litigation is essentially the exercise of judgment. The prudence, foresight and imagination of counsel’s judgment must be considered at the time the disbursement was incurred or the work done. It is inappropriate to apply a test of hindsight to determine whether a service or charge was for an extra not reasonably necessary to advance the client’s position. The time to view the decision to commit services to the issue is before the trial. I have already found that, in defending this action, Weismiller acted reasonably.

[10] It is clear that the proceedings, and the motion, could have lasted longer had both counsel not focused their efforts as they did. Mr. Fairley’s hourly rates from time to time are entirely reasonable. I am not persuaded that he or his firm engaged in any excessive billing. The explanations related to each docketed item are sufficiently detailed to allow me to properly assess the claimed items. I have a latitude under the Rule and do not consider it to be my role to second guess the time spent by counsel unless the time is manifestly unreasonable in the sense that the total time spent or disbursements incurred were clearly excessive or that a matter was the subject of an unwarranted number of legal personnel. None of those exceptions are demonstrated in this case.

[11] I have considered the principle of indemnity and the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the motion and to the proceeding. While judges should not attempt, in my view, to act as arbiters in the abstract of what disbursement amounts are appropriate, the disbursement charges in this case bear a reasonable relationship to prevailing market rates and I hold that the claims and disbursements are not excessive or unreasonable.

[12] In coming to the conclusion that I have, I have attempted to be fair to both sides. As I have noted, in fixing costs I am not meticulously assessing them as if I were performing the function of an assessment officer. I have, however, conducted a critical examination of the work performed by Weismiller’s counsel.

[13] I fix partial indemnity fees at $18,500 plus HST. I fix disbursements at $3,652.90 plus HST. Finally I award Weismiller an additional $400 plus HST in costs for work performed in the cost fixing itself. All costs are ordered payable forthwith.

R. MacKinnon J.

Released: June 4, 2013