ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 07-38142
DATE: 2013/07/04
BETWEEN:
Corey Hume
Plaintiff
– and –
Kalid Ghadban and The Ottawa Police Services Board
Defendants
William J. Sammon, for the Plaintiff
Benoit M. Duchesne, for the Defendants
HEARD: By written submissions
DECISION REGARDING COSTS
R. Smith J.
Position of Parties
[1] The plaintiff seeks an award for costs thrown away in the amount of $47,086.00 inclusive of HST of $5,167.00 and disbursements of $2,167.00. The defendant Police Services Board served a motion record seeking permission to file an expert report on the Friday before the trial was set to commence, which was May 27, 2013. The trial date had been set at a case conference on November 26, 2012. The defendant’s motion was granted on the condition that the trial be adjourned and it pay the plaintiff’s costs thrown away.
[2] The defendant submits that costs thrown away are the reasonable costs incurred in preparation for the aborted trial that would have no use in a future trial. I agree. The defendant submits that the amount of substantial indemnity costs should be reduced by 60% to take into account the fact that a fair part of the work is not completely useless. The defendant further submits that full or complete indemnity costs are only appropriate where there has been a scurrilous attack on the administration of justice, where there are unsubstantiated allegations of dishonesty, illegality and conspiracy advanced without merit, or to reprimand conduct which is reprehensible, scandalous or outrageous. It submits that substantial indemnity costs are appropriate as none of the above situations apply. Finally the defendant submits that the plaintiff has failed to provide adequate details for the $52,696.00 claimed for trial preparation.
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, 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
[4] In this case the defendants were successful in obtaining permission to file an expert report on the eve of trial, however the relief was granted on the condition that the trial be adjourned and the defendants pay the plaintiff’s costs thrown away.
Scale of Costs
[5] The plaintiff claims costs on a complete indemnity scale because the defendants sought to file an expert report on the Friday before the commencement of trial. I agree with the plaintiff and find that reasonable costs incurred by the plaintiff in preparing for the trial that will be completely wasted should be paid on a complete indemnity basis. The waste of the plaintiff’s legal costs in needlessly preparing for trial was caused solely by the defendant’s conduct of failing to serve an expert report in accordance with the Rules of Practice and on very short notice, namely the Friday before the trial was set to commence. I find that the defendant would reasonably have expected to pay the plaintiff’s complete legal costs for wasted preparation when it decided to introduce an expert report at the last minute before trial. As a result the reasonable costs incurred by the plaintiff in preparation for trial that will be wasted will be fixed on a complete indemnity basis.
Hourly Rates, Time Spent, Proportionality and Reasonable Expectations of Losing Party
[6] The defendants submit that the plaintiff’s costs for preparation for trial should be discounted by 60%, whereas the plaintiff proposes to discount these costs by 40% because some of the preparation time would not be wasted. I find that a 50% discount is a reasonable percentage to apply in the circumstances.
[7] The defendants further submit that at least five hours for both plaintiff’s counsel should be discounted for the time spent on the mediation and judicial pretrial. I agree with this submission.
[8] The defendants dispute the plaintiff’s claim for $1,000.00 for the economic loss expert to prepare an update to her economic loss report. I agree with the plaintiff’s submission that the $1,000.00 claimed is reasonable because the change of the date of trial requires Ms. Carter to prepare new calculations to coincide with the September 16 trial date.
[9] The defendants dispute the amount claimed by the plaintiff for costs of the motion to abridge the time to file the expert report in the amount of $4,500.00. The defendant submits that either no costs should be awarded with respect to the May 27 motion or that such costs would not reasonably be expected to have exceeded $2,200.00.
[10] I find the defendants would reasonably have expected to pay costs of $3,500.00 for the plaintiff to respond to their late motion to introduce an expert report. This amount would include the plaintiff’s claim for counsel fee at trial which I am not prepared to award because the trial did not commence.
Disposition
[11] Having considered all of the above factors the defendants are ordered to pay costs thrown away to the plaintiff fixed in the amount of $27,951.00 ($24,451.00 plus $3,500.00) plus HST plus disbursements of $2,167.00 inclusive of HST.
R. Smith J.
Released: July 4, 2013
COURT FILE NO.: 07-38142
DATE: 2013/07/04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Corey Hume
Plaintiff
– and –
Kalid Ghadban and The Ottawa Police Services Board
Defendants
DECISION REGARDING COSTS
R. Smith J.
Released: July 04, 2013