Court File and Parties

Court File No.: CV-09-00375111
Date: 20130913
Superior Court of Justice - Ontario

Re: BYONG-KUON KIM, Plaintiff

And:
DONGPO NEWS, KWANG HO SONG and JOHN DOE, Defendants

Before: T. McEwen J.

Counsel:
Paul Boshyk, for the Plaintiff
James H. Herbert, for the Defendant Kwang Ho Song

Heard: In writing

Costs Endorsement

[1] The trial of this action proceeded before me, without a jury, commencing on June 10, 2013 and lasting for two days.

[2] Counsel have not been able to agree on the issue of costs and I have received and reviewed the written submissions of counsel.

[3] In conducting my review of the costs submissions, I have taken into account the principles set forth in Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON C.A.). I note that the overall objective of fixing costs is to arrive at an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances rather than an amount fixed by the actual costs incurred by the successful litigant. As will be seen below, I do not go through each item and conduct what amounts to an assessment of the Bill of Costs provided. Instead, I fixed costs keeping mind the principle of proportionality and the factors set out in R. 57.01.

[4] Each side claims that they have bested offers to settle that were served prior to trial. I disagree.

[5] In the case of the plaintiff’s offer to settle dated May 23, 2013, the plaintiff received more than was offered for damages but costs were fixed in a lump sum. As such, it makes the offer impossible to meaningfully interpret. Further, no apology was ordered.

[6] In the case of the defendant, its first offer of November 24, 2011, was in the amount of $10,000 for damages and the plaintiff received more than this amount. With respect to the offer of December 17, 2012, there was no provision for costs and the plaintiff is entitled to costs.

[7] In my view, given the above, the plaintiff is entitled to costs on a partial indemnity basis throughout.

[8] The amount sought, in my view, however, is high for the following reasons:

(a) The partial indemnity rate of $170 for Mr. Boshyk is high considering his year of call;

(b) the matter should have been initiated in the Simplified Procedure from the outset; and

(c) a number of lawyers, students and law clerks worked on this rather straightforward matter and as such there was duplication.

[9] In my view, the amount of $12,500, plus HST and the disbursements sought of $2,383.40 (which the defendant did not dispute) are reasonable.

[10] Costs are to be paid within 60 days.

T. McEwen J.

Date: September 13, 2013