ONTARIO

SUPERIOR COURT OF JUSTICE

O/A/ LISA’S SERVICE STATION, 6711961 CANADA INC.

O/A RAILWAY GARAGE and DEEPAK JULKA, 2013 ONSC 4327

COURT FILE NO.: 5034/08

DATE: 20130624

B E T W E E N:

829276 ONTARIO LTD.

Peter Diavolitsis, for the Plaintiff

Plaintiff

• and -

6711677 CANADA INC., O/A LISA’S SERVICE STATION, 6711961 CANADA INC., O/A RAILWAY GARAGE and DEEPAK JULKA

Lisa Neil, for the Defendants

Defendants

HEARD: June 6, 2013

D E C I S I O N O N C O S T S

WILCOX, J.

[1] The Defendant brought a motion to enforce the terms of an offer to settle and for other relief. In a decision released on April 16, 2013, the court granted the relief requested by the Defendant and invited written costs submissions, which have been received.

[2] A brief review of the facts will aid in understanding. The Plaintiff issued a Statement of Claim in October, 2008. The Defendant responded with a Statement of Defence and Counter-claim in January, 2009. The matter lay dormant until January, 2011 when the Plaintiff’s solicitor made an offer which was subsequently found to have been accepted by the Defendant in April, 2011. However, the Plaintiff disputed that there was a settlement and the case went on for two more years. A status hearing resulted in the order of Justice Rivard dated June 27, 2011. That order was set aside on appeal in February, 2012. A second status hearing took place in October, 2012. The motion to enforce the terms of the settlement was heard in April, 2013.

[3] The Defendant claimed costs on a substantial indemnity basis from April, 2011 onward on the basis that they would not have been incurred but for the Plaintiff’s failure to abide by the settlement terms.

[4] In deciding regarding the costs in this matter, I have considered section 131 of the Courts of Justice Act and rules 49.10 and 57.01 of the Rules of Civil Procedure.

[5] The Defendant also submitted the case of CabCom Network Inc. v. Strategic Media Outdoor Inc. [2012] O.J. No. 3251, a decision of Justice D.A. Wilson of the Ontario Superior Court of Justice. In it, in a somewhat similar fact situation to the present case, an application to enforce an alleged settlement was granted. Costs were then awarded on a substantial indemnity basis.

[6] Despite the Plaintiff’s argument to the contrary, I am persuaded that substantial indemnity costs are appropriate in this case.

[7] In the Defendant’s bill of costs, Defendant’s counsel, Ms. Neil, claimed fees for herself and others. Her fees are in part at $250 per hour and in part at $265 per hour. In view of the “information for the profession”, set out under Rule 50(7) which gives a normal maximum hourly rate for a lawyer with less than ten years experience of $225 per hour, and Ms. Neil’s experience of about six years as of 2011, I would reduce the fees claimed for her services to a rate of $225 per hour for the purpose of calculating costs.

[8] The Plaintiff submits that the Defendant is not entitled to costs related to the status hearing that led to Justice Rivard’s order in June, 2011, which did not contain a costs award. In support of this argument, he relies on the decision of the Ontario Court of Appeal in the case of Delrina Corp. v. Triolet Systems Inc. 2002 45083 (ON CA), 165 O.A.C 160, 22 C.P.R. (4th) 332. Having reviewed the case, I agree with this submission.

[9] The Plaintiff further submits that the order of the Ontario Court of Appeal of February 7, 2012 explicitly stated that there be no costs of the appeal. Again, I agree.

[10] Taking these into account, the Plaintiff submits, reduces the Defendant’s fees on a full indemnity basis to $18,530.50. This would be from the actual rate stated in the Defendant’s bill of costs of $23,802.50. The Plaintiff does not show his calculations, so it is not clear which of the time dockets in the bill of costs are allegedly related to these matters and involved in his calculations. However, the fee reduction proposed corresponds to about 19 hours at the hourly rates Ms. Neil claimed, and the first 19 hours of her time dockets appear to relate to them. So, I would reduce her hours claimed by 19 to 63.4 hours.

[11] 63.4 hours at $225 an hour produces a total of fees for Ms. Neil of $14,265. Together with the fees claimed for others involved, the total fees are $16,503. HST at 13 percent amounts to $2,145.39, bringing the total of fees and HST to $18,648.39.

[12] Based on that, I would award substantial indemnity costs of $15,500 plus the total of the disbursements and applicable taxes claimed being $460.63.

[13] The Defendants are therefore awarded costs in the amount of $15,960.63 payable by the Plaintiffs.

Justice James A. S. Wilcox

Released: June 24, 2013