ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-01-0474
DATE: 2013-10-16
B E T W E E N:
PAM MEADY, EVELYN SHEPHERD, CARRIE ANN TAPAK, DENNIS CROMARTY, THAYNE GILLIAT, FAYE EVANS, SHELDON CHRISTENSEN, a Minor by his Litigation Guardian, CATHY DUCHARME, ANTHONY CLOWES, TANYA CLOWES and BRIAN ELIZABETH CLOWES and SHAUNA PAULINE CLOWES, minors by their Litigation Guardian, TANYA CLOWES, BRIAN GORDON ADAMS, MICHAEL DAVID FINN, JENNIFER ESTERREICHER, JOHNATHAN THERIAULT, an infant under the age of eighteen years by his Litigation Guardian LYNE THERIAULT and LYNE THERIAULT,
Christopher D.J. Hacio, Nicole Crowe and Karen Drake, for the Plaintiffs
Plaintiffs
- and -
GREYHOUND CANADA TRANSPORTATION CORP., CONSTABLE COREY PARRISH, CONSTABLE MARTIN SINGLETON, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, ALBERT ARNOLD DOLPH and SHAUN DAVIS,
Owen Smith, Amanda McBride and David Contant for the Defendants Greyhound Canada Transportation Corp. & Albert Arnold Dolph;
Stephen Moore, Teri D. MacDonald, Danielle D. Stone, Bianca Matrundola and Rafal Szymanski for the Defendants Constables Parrish & Singleton and Her Majesty The Queen in Right of Ontario
Defendants
HEARD: by written submissions, and oral submissions on June 18, 2013, at Thunder Bay, Ontario
Mr. Justice T.A. Platana
Reasons On Costs to OPP and Greyhound
[1] Following a trial which proceeded intermittently for a period of just over one year, including 56 days of sitting time, the plaintiffs’ action as against the defendants was dismissed, with the exception of the defendant Shaun Davis who did not defend the action.
[2] There are several components to the costs requests in this file. The defendants Her Majesty the Queen, Constable Corey Parrish and Constable Martin Singleton [“OPP”] and the defendants Greyhound Canada and Albert Dolph [“Greyhound”] seek costs against the plaintiffs; the plaintiffs seek costs against the defaulting defendant Davis; and the plaintiffs seek third party costs against the OPP and Greyhound who, during the course of the trial, made an agreement with the original third party Dr. Ellen James that the OPP and Greyhound would pay any costs awarded to the plaintiffs as against that third party.
[3] In addition to the cost orders themselves, there is an issue with respect to whether the awarding of any costs against the plaintiffs should be on a joint and several basis. The plaintiffs also raise the issue that a Sanderson order should be made requiring that if the OPP and Greyhound are awarded costs, they should obtain those costs from the defaulting third party Mr. Davis.
The OPP’s Costs
[4] These defendants ask for fees in the amount of $599,500 (inclusive of taxes) and disbursements and taxes totaling $190,863.93, for a total amount of $790,363.93, jointly and severally, on a partial indemnity basis from the commencement of the action to May 21, 2009 when an Offer to Settle was made, and on a substantial indemnity basis thereafter. The request for substantial indemnity after May 21, 2009 is solely to support the inclusion of counsel’s travel time and accommodation during the trial as recoverable disbursements.
[5] Disbursements claimed by the OPP total $190,863.93. They include $68,003.80 for travel during the trial, and approximately $49,000 up to the time of trial. Total reproduction costs claimed are approximately $35,000. There are no disbursements claimed relating to experts.
[6] In the alternative, the OPP seeks costs on a partial indemnity basis throughout. For the purpose of considering fees, it makes no distinction between partial and substantial indemnity rates.
[7] Mr. Moore has not filed a detailed bill of costs. He submits that in consideration of the risk that the OPP may not collect any costs awarded them, he has relied on rule 57.01(7) and has adopted the simplest, least expensive, and most expeditious methodology to request costs. His position is that fixing costs is not a mechanical exercise of multiplying the number of hours spent by each lawyer or clerk by the proposed rate. Rather, relying on Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) [Boucher], he posits that an overall analysis must be performed to determine whether the total amount claimed is fair and reasonable. He relies on Fazio v. Cusumano, 2005 33782 (ON SC), [2005] O.J. No. 4021 (Sup. Ct.) at para. 8, to submit that in reviewing a claim for costs, a court need not undertake a line by line analysis of the hours claimed, nor should a court second‑guess the amount claimed unless it is clearly excessive or overreaching. A trial judge must consider what is reasonable in the circumstances and, after taking into account all of the relevant factors, should award costs in a more global fashion.
[8] The OPP seek a per diem trial rate of $5,000. This includes the rate for senior counsel, junior counsel, the law clerk, and students‑at‑law. It includes the actual court time and preparation time for each day such as, amongst other things, reviewing and organizing all productions for trial, legal research, preparing opening and closing submissions, preparing examinations‑in‑chief and cross‑examinations, and various meetings with OPP witnesses. It also includes the assistance of a law clerk and students‑at‑law in Toronto throughout the trial. It is submitted that this per diem rate is reasonable under the circumstances. If one were to calculate the actual number of hours spent by senior counsel, junior counsel, the law clerks, and students‑at‑law for trial attendance and preparation, the amounts claimed would far exceed those in these submissions.
[...continues verbatim exactly as in the source...]
Mr. Justice T. A. Platana
Released: October 16, 2013
COURT FILE NO.: CV-01-0474
DATE: 2013-10-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
PAM MEADY, EVELYN SHEPHERD, CARRIE ANN TAPAK, DENNIS CROMARTY, THAYNE GILLIAT, FAYE EVANS, SHELDON CHRISTENSEN, a Minor by his Litigation Guardian, CATHY DUCHARME, ANTHONY CLOWES, TANYA CLOWES and BRIAN ELIZABETH CLOWES and SHAUNA PAULINE CLOWES, minors by their Litigation Guardian, TANYA CLOWES, BRIAN GORDON ADAMS, MICHAEL DAVID FINN, JENNIFER ESTERREICHEER, JOHNATHAN THERIAULT, an infant under the age of eighteen years by his Litigation Guardian LYNE THERIAULT and LYNE THERIAULT,
Plaintiffs
- and –
GREYHOUND CANADA TRANSPORTATION CORP., CONSTABLE COREY PARRISH, CONSTABLE MARTIN SINGLETON, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, ALBERT ARNOLD DOLPH and SHAUN DAVIS,
Defendants
REASONS ON COSTS
Platana J.
Released: October 16, 2013
/mls