ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-50451
DATE: 2013/06/05
BETWEEN:
REBECCA PAMMETT, GAIL PAMMETT and KENNETH PAMMETT
Plaintiff
– and –
McBRIDE CORP.
Respondent
Laurie A. Tucker, for the Plaintiff
Michael Raymond Switzer, Esq., for the Defendant
DECISION REGARDING COSTS
R. Smith J.
Overview
[1] The defendant, McBride Corp. [“McBride”], brought a summary motion seeking to dismiss the plaintiffs’ claim against it on the grounds that it was not occupier of the area where the plaintiff slipped and fell. McBride also brought a motion to amend its statement of defence to plead that it was not an occupier of the premises where the fall took place. The defendant’s motion for summary judgment was dismissed and its motion to amend its statement of defence was granted.
Positions of Parties
[2] The plaintiffs submit that the substance of the motion was primarily with respect to the summary judgment issue. I agree. The plaintiffs submit that they were completely successful on the summary motion and as a result are entitled to costs. The plaintiffs also argue that the defendant should have known that its motion for summary judgment would in all likelihood be unsuccessful and it was therefore unreasonable for McBride to have brought the summary motion. For this reason the plaintiffs seek to recover fees on a substantial indemnity basis. The plaintiffs seek substantial indemnity costs in the amount of $17,711.91 or in the alternative partial indemnity costs in the amount of $13,574.31.
[3] The defendant, McBride, submits that parties should bear their own costs or in the alternative the costs of the motion should be left to be determined by the trial judge.
Factors
[4] The factors to be considered when fixing costs are set out in Rule 57 of the Rules of Civil Procedure and include in addition to success, the amount claimed and recovered, the complexity and importance of the matter, unreasonable conduct of any party which unduly lengthened the proceeding, scale of costs and any offer to settle, the principle of indemnity, hourly rate claimed the time spent and the principle of proportionality, and the amount that a losing party would reasonably expect to pay.
Success
[5] In this case the plaintiff was successful in opposing the defendant’s motion for summary judgment. This part of the motion took most of the time and a small amount of time was devoted to the defendant’s motion to amend its Statement of Defence. The defendant was successful in obtaining an order permitting it to amend its Statement of Defence to plead that it was not an occupier within the meaning of the Occupiers’ Liability Act, R.S.O. 1990, Chapter O.2. As a result I conclude that success was divided, however the plaintiffs were more successful on the main issue that was argued at the motion.
Complexity
[6] The summary judgment motion was complex, however most of the facts were not in dispute. The matter was very important to the plaintiffs as the limitation period may have passed for other possible defendants. The plaintiffs had omitted to commence action against the actual owner of the premises in question as well as the firm that was hired to maintain the walkway within two years of the slip and fall. As a result the motion was very important to the plaintiffs. The defendant’s motion to amend its statement of defence was not complex and did not occupy a large amount of time.
Scale of Costs
[7] The plaintiff seeks costs on a substantial indemnity basis because they submit the defendant should have known its motion for summary judgment would in all likelihood fail and it was unreasonable to have brought such a motion. I do not find that bringing the motion was so unreasonable that substantial indemnity costs should be awarded against the defendant. The plaintiffs also caused the situation by failing to sue the owner of the leased premises and the firm hired to maintain the premises where the slip and fall occurred. As a result, I find that costs on the partial indemnity basis are appropriate, adjusted to reflect the divided success.
Hourly Rates, Time Spent and Proportionality
[8] The greater part of the time was spent on the summary judgment motion and a much smaller amount of time was spent on the motion to amend the pleadings.
[9] The defendant submits that only the time spent by Ms. Tucker should be allowed. Some of the research was performed by Grandmaitre who was called to the bar in 2010. He claims a partial indemnity rate of $120.00 for his time, which I find is very reasonable. The defendant does not dispute the amount of time spent by Ms. Tucker or her partial indemnity rate claimed of $225.00 per hour. I find the rate and time spent was reasonable. I also find that the small amount claimed for time spent by a clerk, namely 6 hours and an articling student of 8.5 hour is also reasonable.
Amount the Unsuccessful Party Would Reasonably Expect to Pay
[10] The defendant’s bill of costs indicates it has incurred $25,056.00 as well as disbursements of $5,461.00 plus HST for a total of $34,415.09 for fees on these motions. The defendant’s partial indemnity costs were $16,704.00, whereas the plaintiff’s partial indemnity fees and disbursements were $13,574.00. As a result I find that the unsuccessful party would reasonably expect to pay $16,704.00 in partial indemnity fees if it was completely unsuccessful.
Disposition
[11] Having considered all of the above factors and that success was partially divided, the defendant is order to pay costs in the amount of $10,000.00 plus HST plus disbursements of $25.57.
R. Smith J.
Released: 2013/06/05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
REBECCA PAMMETT, GAIL PAMMETT and KENNETH PAMMETT
Plaintiff
– and –
McBRIDE CORP.
Respondent
DECISION REGARDING COSTS
R. Smith J.
Released: 2013/06/05