SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-08-00368597
DATE: 20130118

RE: ANDREA PYMAN, SHANE PYMAN, BLAKE PYMAN and pyman video productions inc.

Plaintiffs/Respondents

• and -

suzanne padt, robert padt, mervin boyko, the regional municipality of halton, the corporation of the town of halton hills, her majesty the queen in right of ontario, as represented by the ministry of transportation, halton regional police service boarD, bernard (bernie) verrette and the dominion of canada general insurance company

Defendants/Appellants

BEFORE: Justice S. M. Stevenson

COUNSEL: Richard H. Shekter, for the Plaintiffs/Respondents

Amelia M. Leckey, for the Defendant/Appellant Mervin Boyko

DATE HEARD: October 29, 2012

ENDORSEMENT AS TO COSTS

[1] In my Reasons for Decision dated December 6, 2012, I urged counsel to agree on costs but if they were unable to do so I asked that they provide me with their written submissions. I have now had an opportunity to review the written submissions provided by the parties.

[2] The Plaintiffs/Respondents are seeking $17,790.17 in costs on a partial indemnity basis for the appeal, inclusive of disbursements and HST. They are also seeking that the costs be paid forthwith in any event of the cause.

[3] The Plaintiffs/Respondents submit that costs were increased due to the additional research and factum preparation required as a result of the Defendant/Appellant, Mr. Boyko’s materials. They also point to the fact that Mr. Boyko raised a number of additional grounds of appeal in his factum that were not raised in the original Notice of Appeal. They contend that as a result, a portion of their factum and research focused on the inability of Mr. Boyko to raise grounds of appeal that were not in his Notice of Appeal. This resulted in Mr. Boyko subsequently filing an amended factum deleting the items that the Plaintiffs/Respondents indicated were not properly before the Court. The Plaintiffs/Respondents also submit that many of the points raised in their factum were adopted by the Court in dismissing the appeal.

[4] Mr. Boyko agrees that costs are payable on a partial indemnity scale and does not dispute the disbursements claimed by the Plaintiffs/Respondents. However, he submits that the motion took a half day and not a full day as claimed by the Plaintiffs/Respondents. As such, the fee for attendance should be $1,690.00, plus HST and not $2,112.50, plus HST as claimed by the Plaintiffs/Respondents.

[5] Mr. Boyko also contends that 40 hours and approximately $7,000.00 spent on preparation of a factum by the Plaintiffs/Respondents is excessive considering that the majority of the arguments raised on appeal were raised in the original motion. Mr. Boyko submits that a reasonable amount of costs, inclusive of fees, disbursements, and HST is $11,000.00.

[6] A substantial amount of time was spent on the preparation of the Plaintiffs/Respondents’ factum and legal research. Most of the time docketed was by Mr. Miller, junior counsel, and not by senior counsel, Mr. Shekter. I agree that there were a number of issues that were more fully explored by the Plaintiffs/Respondents in their factum. I also agree that additional time was required to be spent by the Plaintiffs/Respondents as a result of Mr. Boyko raising grounds of appeal in his factum that were not raised in his Notice of Appeal. This certainly would increase costs for the Plaintiffs/Respondents. I do find, however, that the hours spent in preparing the Plaintiffs/Respondents’ factum (which does not include research) of over 40 hours, is excessive and the hearing was only a half day. There also appears to be some duplication with respect to time spent by Mr. Shekter and Mr. Miller on the preparation of the factum.

[7] As stated in Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.) at para. 26, with respect to costs: "… The objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in that particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant." As also stated in Boucher, the fixing of costs is not a mechanical exercise and does not begin and end with the calculation of hours times rates.

[8] In assessing costs, I have considered what Mr. Boyko, as the unsuccessful party, would have reasonably expected to pay if he was unsuccessful on the appeal. I have also taken into consideration the factors set out in Rule 57 of the Rules of Civil Procedure that the court may consider when exercising its discretion in awarding costs, and the costs submissions of both parties.

[9] Taking all of this into consideration, I order that the Defendant/Appellant, Mr. Mervin Boyko, pay costs to the Plaintiffs/Respondents, in the amount of $14,000.00, inclusive of HST and disbursements in any event of the cause.

[10] I find that this amount is fair and reasonable for Mr. Boyko to pay and an amount that he could have reasonably expected to pay if unsuccessful given the issues raised on appeal by him.

Order

[11] I order the following:

(i) the Defendant/Appellant, Mr. Mervin Boyko, shall pay costs to the Plaintiffs/Respondents, in the amount of $14,000.00, inclusive of HST and disbursements in any event of the cause.

Stevenson J.

DATE: January 18, 2013