SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-05-283654
DATE: 20130709

RE: WILLIAM SCHNURR and MICHELLE BELL, Plaintiffs

AND:

ROBERT CARD and BRIAN CARD, Defendants

BEFORE: T. McEwen J.

COUNSEL:
Nawaz Tahir, for the Plaintiffs

William C. Wolfe, for the Defendants

HEARD: In writing

COSTS ENDORSEMENT

[1] The trial of this action was conducted over three days in February 2013.

[2] The plaintiffs obtained default judgment against the defendant Brian Card. The plaintiffs’ claim against Robert Card was dismissed.

[3] The plaintiffs and Robert Card have now made submissions to me in writing with respect to the issue of costs.

costs of the plaintiffs

[4] The plaintiffs seek costs against Brian Card, against whom they obtained default judgment. The plaintiffs seek the amount of $74,947.05, inclusive of all fees, disbursements and GST.

[5] In my view, this amount is excessive for a number of reasons including the following:

• Brian Card did not defend the action and the exercise of obtaining default judgment against him was straight forward and would have not have taken much in the way of preparation or more than one day of trial time.

• It is apparent from the plaintiffs’ Bill of Costs that they are seeking costs against Brian Card with respect to all of their preparation and attendance at trial with respect to their action against Robert Card which was dismissed.

• For reasons not made known to me, the plaintiffs had ten different lawyers, five different clerks and four different students work on the file over time. Collectively they docketed in excess of 300 hours.

[6] Obtaining default judgment against Brian Card was a straight forward exercise given the fact that he was noted in default and the calculation of damages was not complicated.

[7] In the circumstances, I would award damages to the plaintiffs, as against Brian Card, in the amount of $7,500.00 plus HST for fees for a total of $8,475.00.

[8] With respect to disbursements I would award the following:

Issue of Statement of Claim

$181.00

Fire Report

$35.00

Court Fees

$145.36

Freedom of Information Request

$5.00

Police Records

$5.00

Photocopies

$200.00

Service of Documents

$300.00

Total

$871.36

[9] The assessment of disbursements was not an easy task given the fact that it was not broken down as between the plaintiffs’ claims against Robert Card and Brian Card. The aforementioned disbursements reflect, in my view, what reasonably would have been spent in obtaining default judgment against Brian Card.

[10] The total costs, therefore, ordered to be paid to the plaintiffs by Brian Card is $9,346.36.

robert card

[11] Robert Card seeks costs against the plaintiffs on a substantial indemnity basis given the fact that he was successful at trial and prior to trial he delivered an offer to settle in the amount of $20,000.00 all inclusive.

[12] The plaintiffs do not take issue with Robert Cards’ disbursements or the time his counsel docketed in this matter. They do submit, however, that the hourly rate sought is too high; that only partial indemnity costs ought to be awarded; and, that Brian Card should be responsible for the costs of Robert Card.

[13] Firstly, I agree with the plaintiffs that only partial indemnity costs ought to be awarded. The plaintiffs’ action was dismissed in its entirety. Accordingly, the provisions of R. 49 concerning offers to settle do not come into play. After reviewing R. 57.01 I see no reason to depart from the usual practice of awarding a successful defendant costs on a partial indemnity basis.

[14] Secondly, I have no difficulty in allowing Robert Card’s counsel, Mr. William Wolfe, costs at the highest end of the range for partial indemnity costs, being $350.00 per hour. Mr. Wolfe has over 20 years experience. I do not agree with the plaintiffs that only the most senior counsel are entitled to costs at the top end of the range and thereafter they should be scaled down. Mr. Wolfe is a senior litigator who ably defended this matter and achieved an excellent result for his client.

[15] Thirdly, I do not agree with the plaintiffs that Brian Card ought to be responsible for the payment of Robert Card’s costs. There were no cross-claims between the parties and, as noted, Brian Card did not even defend the action. After he was noted in default the plaintiffs continued to pursue Robert Card. Furthermore, there is no evidence to suggest that Brian Card will be able to pay the costs of Robert Card. In my view, it would be inequitable to have Robert Card therefore face the risk of incurring all of the costs of defending the matter where the plaintiffs’ claims against him were dismissed. In all of these circumstances I do not believe that it is just and fair to deprive Robert Card of his costs as against the plaintiffs.

[16] In calculating the cost awarded to Robert Card, I have used the hours set out in his Bill of Costs as opposed to the computer generated printout. There are discrepancies between the two documents and I accept the amounts set out in the Bill of Costs that I have reviewed.

[17] I would therefore award Robert Card costs, to be paid by the plaintiffs, in the following amount:

Fees:

$46,554.00

HST:

$6,052.02

Disbursements, including HST:

$3,188.80

Total:

$55,794.82

disposition

[18] The plaintiffs shall therefore have their costs against Brian Card in the amount of $9,346.36.

[19] Robert Card shall have his costs as against the plaintiffs in the amount of $55,794.82.

[20] All costs are to be paid within 45 days of the date of this Order.

T. McEwen J.

Date: July 9, 2013