Court File and Parties
Court File No.: 06-CV-34194
Date: 2013-09-24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Graham Murray and Tiffani Murray
Stephen Victor, Q.C. and Melanie Maia, for the Plaintiffs
Plaintiffs
- and -
Andrew Davis and Shore, Davis
Eric R. Williams, for the Defendants
Defendants
HEARD: via written submissions
Madam Justice B. R. Warkentin
Reasons on Costs
Reasons on Costs
[1] In paragraph 120 of my Reasons for Judgment dated May 22, 2013, I ordered the parties to provide me with written submissions on costs within 30 days. I have now received and reviewed those submissions.
Pre-Judgment Interest
[2] Both parties noted an error on my part with respect to the issue of pre-judgment interest. I agree with them that pre-judgment interest is payable on the award I made of $22,000.00, not the total amount of $50,000.00. $50,000.00 was the total damage award I found should have been made to the plaintiff in his personal injury claim in 2004 (he received $28,000.00).
[3] The plaintiff claims the pre-judgment interest rate should be 5% because the amount awarded in this professional negligence trial was based upon the award I found the plaintiff should have received for his non-pecuniary losses in his personal injury action. The defendants claim that the pre-judgment interest rate should be 2.3%; the amount in the tables showing the prejudgment interest rates as published by the Ministry of the Attorney General for the applicable period in 2004.
[4] I agree with counsel for the plaintiff that the appropriate percentage for the calculation of pre-judgment interest in this case is 5%. Pre-judgment interest is payable for the entire pre-judgment period.
Costs
[5] Counsel for the Plaintiff is seeking costs in the amount of $278,149.89 on a partial indemnity basis.
[6] Counsel for the Defendants submitted that the Defendants should be entitled to their partial indemnity costs or in the alternative that there should be no award of costs to either party.
[7] In seeking partial indemnity costs, the Defendants claim that the Plaintiff was unsuccessful in the majority of his claims and allege that the Plaintiff deliberately lied to bolster his position.
[8] Alternatively, in seeking no costs, the Defendants take the position that the Plaintiff’s claim should have been commenced under the Simplified Procedure rather than the regular procedure and as such should be denied their costs.
[9] The Plaintiff was successful in his claim for solicitor negligence as it pertained to the advice he received regarding the quantum of general damages for injuries such as the one he had sustained. The unusual aspect in this trial was that the Plaintiff and the Defendant had different versions of the events they claim occurred during the course of the personal injury proceeding in 2003 and 2004. I accepted the Defendant's version of the events.
[10] Counsel for the Defendants has suggested in his costs submissions that the Plaintiff lied about certain events. I did not make that finding.
[11] Each party made a variety of Offers to Settle during the course of the litigation. The Plaintiffs' Offers to Settle were greater than my damage award and the Defendants' Offers to Settle were lower than what I awarded at trial. On that basis, I am not prepared to consider the Defendants' proposal for their partial indemnity costs.
[12] While the quantum of my award fell within the range contemplated by the Simplified Procedure, there was a range of outcomes that might have accrued to the Plaintiff that were substantially greater than the jurisdictional limit in the Simplified Procedure. Therefore I also reject the Defendants' submission that no costs be awarded.
[13] In reviewing the Bill of Costs for the solicitor for the Plaintiff, and recognizing that the Plaintiff was unsuccessful in many of his claims, particularly regarding his version of the events he claimed occurred, in the face of the overwhelming evidence supporting the Defendant's version, I am not prepared to make the costs award proposed by the Plaintiff.
[14] In Fong et al v. Chan et al,[^1] the Ontario Court of Appeal set out three fundamental purposes of modern cost rules:
(1) to indemnify successful litigants for the cost of litigation;
(2) to encourage settlements; and
(3) to discourage and sanction inappropriate behaviour by litigants.
[15] One of the main purposes of a costs award is to “compensate the successful party to the litigation for some of the legal expenses that party has incurred.”[^2] In this case, the Plaintiff was successful, albeit not on everything he was seeking.
[16] One must always have in mind the overriding principle of reasonableness and the fundamental objective of preserving access to justice. The Ontario Court of Appeal in Boucher v. Public Accountants Council For The Province of Ontario[^3] stated that the fixing of costs does not begin nor end with the calculation of hours multiplied by rates. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case rather than an amount fixed by the actual costs incurred by the successful party.
[17] After considering the result achieved by the Plaintiff, as well as the particular circumstances in this case I award the Plaintiff costs in this proceeding in the amount of $150,000.00 inclusive of GST/HST and disbursements.
Madam Justice B. R. Warkentin
Released: September 24, 2013
COURT FILE NO.: 06-CV-34194
DATE: 2013-09-24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Graham Murray and Tiffani Murray
Plaintiffs
- and –
Andrew Davis and Shore, Davis
Defendants
REASONS ON COSTS
Warkentin J.
Released: September 24, 2013
[^1]: (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330
[^2]: Televisions Real Estate Ltd. v. Rogers Cable T.V. Ltd., 1997 999 (ON CA), [1997] O.J. No. 1944 (Ont. C.A.) at para. 24.
[^3]: 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)