ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: C-295-11
DATE: 2013-09-16
B E T W E E N:
Amtim Capital Inc.
Ron Craigen, for the Plaintiff Respondent
Plaintiff Respondent
- and -
Appliance Recycling Centers of America
Thomas McRae, for the Defendant Applicant
Defendant Applicant
The Honourable Mr. Justice T.R. Lofchik
COSTS REGARDING MOTION HEARD IN KITCHENER JUNE 13, 2013
[1] The defendant, Appliance Recycling Centers of America, brought this motion seeking an order dismissing Amtim Capital Inc.’s action on the basis of res judicata. The defendants were unsuccessful in their motion and the plaintiff is therefore entitled to its costs on a partial indemnity basis.
[2] The fact that senior counsel appeared on both sides to argue the motion is indicative of the fact that the outcome was of considerable importance to both sides.
[3] The motion presented complex legal issues in an evolving area of law. It required an examination not only of the res judicata doctrine and related doctrines, but also conflict of law principles in the application of such rules to the specific facts of this dual jurisdictional dispute.
[4] Additionally, it was critical to the plaintiff’s success on the motion that the court examine the legal underpinnings of the U.S. judgment, which was the foundation of the defendant’s res judicata attack. Consequently, it was necessary for counsel to conduct detailed research of U.S. law regarding declaratory judgments and also to engage U.S. counsel to provide the required evidence.
[5] The plaintiff seeks fees of $39,587 on a partial indemnity basis plus disbursements of $6,335.31.
[6] Defendant’s counsel argues that the costs being sought as a result of this motion are approximately three times what was awarded in a previous motion and prior appeal relating to forum conveniens and three times the amount that would be claimed had the defendant been successful on the motion.
[7] I find that considerably more research was done on behalf of the plaintiff with respect to American jurisprudence relating to the Declaratory Judgments Act, which was an important part of their argument, than would have been done with respect to the forum conveniens argument. I also accept plaintiff counsel’s submission that the res judicata motion was of critical importance to both parties as it had the potential to end the action without trial. The amount at stake in the action is approximately $1,600,000 and complex issues of law were being canvassed on the motion. For these reasons I believe the plaintiff’s research necessary here would be more extensive than that required on the forum conveniens motion or that required by defence counsel who merely had to present the Minnesota judgment and argue res judicata.
[8] On the other hand, there had to be some duplication of effort with respect to the work done by plaintiff’s counsel and U.S. counsel which had been retained.
[9] I must also consider what the opposing party might reasonably expect to pay for costs on a motion to dismiss the plaintiff’s action.
[10] 98 hours at senior counsel rates to prepare for a 1 day motion leads to a sum considerably larger than the defendant might reasonably expect considering that some of the research was done by U.S. counsel, whose time is being billed as a disbursement.
[11] There is ample authority for the proposition that the determination of reasonable party and party fees does not necessarily involve merely taking the successful counsel’s hourly rate multiplied by hours expended.
[12] The issue of whether the defendant’s motion was improper, vexatious or unnecessary goes more to the question of the scale of costs to be awarded rather than the quantum of costs (See Rule 20.06).
[13] The plaintiff here is seeking costs at the partial indemnity rate and has not made any submissions for costs to be at a higher scale.
[14] I find reasonable costs by way of counsel fee for senior counsel to be in the amount of $25,000 plus costs of the time of the student-at-law in the amount of $1,250 for a total of $26,250.
[15] I find that the claim for disbursements in the amount of $6,335.31 to be reasonable.
[16] In the result, the plaintiff is entitled to recover costs from the defendant as follows:
Fees $26,250.00
HST on fees $ 3,412.50
Disbursements $ 6,335.31
HST on disbursements $ 46.46
Total: $36,044.27
LOFCHIK J.
Released: September 16, 2013
COURT FILE NO.: C-295-11
DATE: 2013-09-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Amtim Capital Inc.
Plaintiff Respondent
– and –
Appliance Recycling Centers of America
Defendant Applicant
COSTS REGARDING MOTION HEARD IN KITCHENER JUNE 13, 2013
Lofchik J.
TRL:mg
Released: September 16, 2013