SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-12-0081-SR
DATE: August 21, 2013
RE: Carmen Drywall Limited, Plaintiff
AND:
BCC Interiors Inc., Edward Burns and Terry Klingenberg, Defendants
BEFORE: André J.
COUNSEL:
Patrick G. Muise, for the Plaintiff
Howard M. Wise and Bradley Halfin, for the Defendants
HEARD: July 16, 2013
COST ENDORSEMENT
[1] I must now determine what quantum of costs is fair and reasonable in this matter where I granted the moving party’s claim for summary judgment because the plaintiff’s collection claim was statute barred. The defendants seek costs in the amount of $17,047.26 on a partial indemnity basis. The plaintiff suggests that this amount is patently unreasonable given the uncomplicated nature of the sole issue in the matter.
Overview
[2] The defendants hired the plaintiff to do some repairs in a building. The defendants did not pay the plaintiff’s invoices but rather told him that upon receiving a settlement from their insurance company they would pay the outstanding debt. Suffice it to say that more than two years after the plaintiff’s collection claim against the defendants arose, the latter advised the plaintiff that they would not pay the outstanding debt.
[3] They did this after the insurance company had paid them an undisclosed sum of money.
[4] By that time, the plaintiff was statute barred from seeking judicial redress because it had unfortunately delayed more than two years in filing a statement of claim against the defendants.
Legal Principles
[5] In assessing the propriety of awarding costs in this matter I am guided by a number of principles that emerge from the relevant statutes and the applicable jurisprudence. I have the discretion, pursuant to s. 131 of the Courts of Justice Act and s. 57.01 of the Rules of Civil Procedure to award costs to the successful party or in this case, parties.
[6] Secondly, costs should follow the cause and it is generally appropriate that the losing party should be responsible for the costs of responding to the motion. There are also a number of determinants in quantifying the amounts of costs to be awarded including but not limited to the following factors:
The year of call of counsel and his or her hourly rate;
The complexity of the matter;
The reasonableness or otherwise of the parties’ actions;
The offers to settle if any; and
The apportionment of liability.
[7] I am mindful that the determination of costs does not require blind acceptance of a bill of costs even if it appears that the number of hours spent on the matter and the hourly rate of the parties who prepared the matter appear to be reasonable.
[8] I am required to take an objective view of the costs claimed and consider whether, in all the circumstances of the matter, the costs award is both fair and reasonable. See Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (Ont. C.A.), para. 24.
[9] I am also guided by the Court of Appeal’s admonition in Zesta Engineering Ltd. V. Cloutier, (2002) 2002 25577 (ON CA), 21, C.C.E.L. (3d) 161 (Ont. C.A.) para. 4, that costs awards should reflect not so much the actual costs of the successful litigants but what the court regards as fair and reasonable.
Analysis
[10] In my view the costs claimed by the defendants are unfair and unreasonable for the following reasons:
In his materials and submissions during the hearing of the Motion, counsel for the defendants repeatedly stated that the matter was a simple, uncomplicated collection claim, which was statute barred. There is, in my view, a fundamental disconnect between this representation and the approximately 90 hours that were spent in preparing this matter.
The matter did not require work by two lawyers and two students-at-law.
The defendants, albeit successful, fostered the impression that they would pay the plaintiff for their services. While the latter should have been more diligent in protecting his interests, the defendants were less than forthright or candid in their dealings with the plaintiff.
It appears that the defendant have been compensated by their insurance company for the water damage which was repaid by the plaintiff. To that extent, they have already been enriched at the plaintiff’s expense. Acceding to their request for $17,047.26 in costs would be, in my respectful view, patently unreasonable.
Conclusion
[11] Based on the above the plaintiff will pay to the defendants costs fixed in the amount of $8,000 inclusive, within 90 days of today’s date.
"Justice I. André "
Justice I.W. André
Date: August 21, 2013