SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 11-52912
DATE: 2013/07/03
RE: Olive Heasley, Phyllis Burtenshaw-Lalonde and Amanda Eileen Burtenshaw, Plaintiffs
AND
Robert Labelle and 417 Bus Line Limited, Defendants
BEFORE: Mr. Justice Robert J. Smith
COUNSEL: Thomas P. Connolly, for the Plaintiffs
Norman W. Carroll, for the Defendants
HEARD: By written submissions
E N D O R S E M E N T R E G A R D I N G C O S T S
Positions
[1] The plaintiffs seek costs of $9,633.74 inclusive of HST on a partial indemnity basis as the successful party on this motion, plus costs of $500.00 for their submissions on costs.
[2] The defendants submit that no costs should be ordered and that they should receive $1,000.00 for their submissions on costs because new facts were learned at discoveries which should have been provided before discoveries and which would have removed the necessity of bringing this motion. After discoveries the plaintiffs provided copies of the little black book which was an agenda including the details of who provided care and when and what they were paid. In addition the plaintiffs provided a further set of documents called detailed ledger charts showing the dates, times, and names of caregivers for Olive as well as payments made.
Factors
[3] 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 and the principle of proportionality, the conduct of any party which unduly lengthened the proceeding, whether any step was improper, vexatious or unnecessary, or taken through negligence mistake or excessive caution, a party’s denial or refusal to admit anything, any offer to settle, the principle of indemnity, scale of costs, hourly rate claimed in relation to the partial indemnity rate set out in the Information to the Profession effective July 1, 2005, the time spent, and the amount that a losing party would reasonably expect to pay.
Success
[4] In this case the plaintiffs were completely successful on the motion and the decisions of both Master Roger and Master MacLeod were followed.
Complexity and Importance
[5] The issues were of average complexity and were important to the parties. The issue was particularly important to the defendant who sought to obtain a ruling to establish a precedent that was different from the decisions of the two local masters.
Unreasonable Conduct of Any Party
[6] The defendants allege that the plaintiffs should have given more fulsome disclosure in their affidavit of documents before discoveries were held. The plaintiffs submit that if the defendants had proceeded with the scheduled examinations for discovery they would have discovered the agenda and detailed ledger charts. The issue of lack of fulsome disclosure in the discovery process and any costs consequences are left to the trial judge.
Hourly Rates, Time Spent and Proportionality
[7] The defendants do not to take issue with the hourly rates or the amount that is claimed by the plaintiffs for partial indemnity costs. I agree and find the amount claimed is reasonable as the defendant’s Costs Outline indicates that they spent over $15,000.00 in legal costs on this motion which is substantially more than the plaintiffs’.
Amount the Unsuccessful Party Would Reasonably Expect to Pay
[8] The defendants incurred over $15,000.00 in legal costs and as a result would reasonably expect to pay the sum of $9,633.74 in legal fees as claimed by the plaintiffs.
Disposition
[9] Having considered the submissions of the parties, the defendants are ordered to pay costs in the amount of the $9,500.00 inclusive of HST to the plaintiffs.
R. Smith J.
Date: July 3, 2013
COURT FILE NO.: 11-52912
DATE: 2013/07/03
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Olive Heasley, Phyllis Burtenshaw-Lalonde and Amanda Eileen Burtenshaw, Plaintiffs
AND
Robert Labelle and 417 Bus Line Limited, Defendants
BEFORE: R. Smith J.
COUNSEL: Thomas P. Connolly, for the Plaintiffs
Norman W. Carroll, for the Defendants
ENDORSEMENT REGARDING COSTS
R. Smith J.
Released: July 3, 2013