SUPERIOR COURT OF JUSTICE - ONTARIO

2013 ONSC 5119

COURT FILE NO.: CV-10-406325
MOTION HEARD: JUNE 27, 2013

RE: Pro-Kyoto International Inc. and EcoMedia Direct Inc. v. City of Toronto

BEFORE: MASTER R.A. MUIR

COUNSEL:
T. Colleen Feehan for the plaintiffs
Darrel A. Smith for the defendant

REASONS FOR DECISION - COSTS

[1] This costs decision arises out of a motion I heard on June 27, 2013. The motion was brought by the plaintiffs pursuant to Rule 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for an order granting them leave to amend their statement of claim.

[2] On July 4, 2013, I released my reasons for decision in which I granted the relief sought by the plaintiffs. As part of those reasons, I requested that the parties attempt to resolve the issue of costs. It appears that the parties have been unable to do so as I have now received the parties’ written costs submissions.

[3] The plaintiffs seek their partial indemnity costs in the amount of $6,088.25. The defendant takes the position that the amount requested by the plaintiffs for costs is excessive. The defendant submits that $3,745.00 plus HST is fair and reasonable, but payable to the plaintiffs in the cause.

[4] When dealing with costs, the overall objective for the court is to fix an amount that is fair and reasonable for the unsuccessful party who generally must pay the costs of the successful party. See Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 (C.A.) at paragraph 4 and Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.) at paragraph 26. In Clarington (Municipality) v. Blue Circle Canada Inc., 2009 ONCA 722 the Court of Appeal stated as follows at paragraph 52:

Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant

[5] The plaintiffs were successful on this motion and are entitled to costs. However, I agree with the defendant that the amounts requested by the plaintiffs are excessive under the circumstances.

[6] The plaintiffs have included a claim for the costs of drafting and revising their proposed amended statement of claim. The costs associated with preparing the amended pleading are the responsibility of the plaintiffs. This is not a cost that should be borne by the defendant regardless of the outcome of the motion.

[7] I also agree with the defendant that the counsel fee claimed by the plaintiffs for the appearance on the motion is somewhat excessive as well.

[8] I have therefore concluded that a costs order in favour of the plaintiffs in the amount of $3,745.00 plus HST is fair and reasonable in the circumstances. I see no reason why these costs should not be paid within thirty days as set out in Rule 57.03(1). The defendant argues that the plaintiffs may not be successful at trial with respect to the issues raised by the amendments. That may be true. However, in my view, such a consideration is not relevant to the question of whether the defendant should have opposed this interlocutory motion.

[9] The defendant will pay the plaintiffs’ costs of this motion on a partial indemnity basis in the amount of $4,231.85 inclusive of HST and disbursements, payable within 30 days.

Master R.A. Muir

DATE: August 6, 2013