CITATION: Roth v. Juschka v. Brock, 2013 ONSC 6052
COURT FILE NO.: C-62-09 COURT FILE NO.: C-62A-09 DATE: 2013-09-26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Marlene Florence Roth, Estate Trustee of the Estate of Harold Peter Roth, Deceased, and Marlene Roth
Plaintiffs
– and –
Roy Juschka, Cynthia Juschka and Roth-Juschka Holdings Ltd.
Defendants
– and –
Allan D. Brock
Third Party
COUNSEL:
Randy Thomson, for the Plaintiffs
T.J. Corbett and Paul Hendrikx, for the Defendants
Paul Strickland, for the Third Party
BEFORE: Glithero J.
RULING ON COSTS
[1] Following a six day trial, I released written reasons on July 15, 2013. I gave judgment in favour of the plaintiffs in respect of a large portion of their claim, and I dismissed the third party action.
[2] I invited written submissions on costs and such submissions have been received from all parties.
[3] The plaintiffs obtained judgment in the amount of $394,666, together with prejudgment and post-judgment interest. The plaintiffs claim that the amount of prejudgment interest is $78,143.87, leading to a total recovery of $472,809.87.
[4] The plaintiffs made a written offer to settle dated August 3, 2012, in the amount of $200,000, inclusive of damages and prejudgment interest, in addition to costs as agreed upon or assessed on a partial indemnity basis. The plaintiffs’ offer complied with Rule 49.
[5] The plaintiffs claim costs in the amount of $30,176, up to the date of the offer on a partial indemnity scale, and costs in the amount of $33,997.50 for costs following the date of the offer to settle on a substantial indemnity basis. The plaintiffs’ further claim HST on fees in the amount of $8,342.56 and disbursements, inclusive of taxes in the amount of $5,022.61, for a total amount for costs of $77,538.67.
[6] There was no offer to settle put forth by the defendants.
[7] The costs submissions from the plaintiffs fully document the time spent, the hourly rates charged, and the disbursements incurred.
[8] In respect of the plaintiffs’ claim for costs, the defendants do not dispute that the time spent by the plaintiffs’ counsel was appropriate. Further, the defendants agree that the plaintiffs are entitled to costs on a partial indemnity scale to the date of their offer to settle and on a substantial indemnity basis thereafter.
[9] I agree that the time spent by counsel for the plaintiffs is reasonable, and that Rule 49 considerations support the award of costs on a partial indemnity scale to the date of the offer and on a substantial indemnity basis thereafter.
[10] Accordingly, in respect of the plaintiffs’ claim for costs, what remains for consideration is the hourly rates claimed.
[11] Plaintiffs’ counsel is a sole practitioner with 29 years of experience. He claims an hourly rate on the partial indemnity basis in the amount of $160 per hour, and claims an hourly rate of $225 on the substantial indemnity scale. In my estimation, those amounts are very reasonable.
[12] Similarly, in my judgment, the amounts claimed for disbursements are all justified and reasonable.
[13] For these reasons, the defendants are ordered to pay costs to the plaintiffs in the amounts claimed totalling $77,538.67.
[14] The submissions on behalf of the defendants take issue with the amount of prejudgment interest as calculated by counsel for the plaintiffs in his submissions on costs.
[15] The plaintiff claims prejudgment interest at the rate of 3.3%. The submissions on behalf of the defendants claim that the appropriate rate is 2.5%. The statement of claim was issued on January 20, 2009.
[16] In my opinion, the appropriate rate is 2.5%. While s.127(1) of the Courts of Justice Act defines the “prejudgment interest rate” as being the bank rate at the end of the first day of the last month of the quarter preceding the quarter in which the action was commenced, the table of appropriate interest rates under s. 127 makes it clear that the published rates for each quarter have been compiled allowing for adjustment in accordance with the Act. The appropriate rate of prejudgment interest, according to the interest rate table, is accordingly the interest rate shown for the quarter in which the action was commenced, which in this case is the 2.5%. The appropriate postjudgment interest rate is 3%.
[17] The costs submissions on behalf of the third party claim costs on a partial indemnity scale in the amount of $67,432.
[18] The submissions on behalf of the defendants do not dispute the appropriateness of the amount of time spent by counsel for the third party, and in those submissions the defendants agree that the third party is entitled to costs on a partial indemnity scale.
[19] In my opinion, the concession that the time spent on behalf of the third party is reasonable is well justified. I agree those time claims are appropriate. I also agree that there is no reason that the third party should not be awarded costs on a partial indemnity scale throughout. There were no offers to settle relevant to the third party claim. The third party was entirely successful. The issues were obviously of importance to Mr. Brock. His defence to the third party claim was conducted in a reasonable and efficient fashion.
[20] Given the concessions by the defendants, with which I agree, it then remains for me to determine the reasonableness of the hourly rates charged. The third party’s bill of costs details the hourly rates on a full indemnity basis, a substantial indemnity basis, and on a partial indemnity basis calculated as 65% of the full indemnity amount. As pointed out by counsel for the third party in his costs submissions, these amounts are below what would normally be charged by virtue of the nature of the retainer by counsel for the third party lawyer. Given the experience of counsel for the third party and the experience of those from his office who worked on this file, in my opinion the hourly rates charged on a partial indemnity scale are quite reasonable.
[21] The submissions on behalf of the third party and the responding submissions on behalf of the defendants disagree as to whether I ought to award costs as claimed by the third party in respect of a motion for undertakings. That motion was ultimately the subject of a consent order which reserved costs of that motion to the trial judge. The position on behalf of the third party is that the defendants were unreasonable in the stance they took with respect to undertakings and accordingly that the motion was necessarily brought. On behalf of the defendants, it is contended that most of the information sought was irrelevant and constituted a fishing expedition. As best I can make out, the fact of the matter is that the defendants ended up conceding all but six of the items sought in the motion. In my opinion, the third party was accordingly largely successful. The third party should have his costs of that motion on a partial indemnity basis as claimed.
[22] I have reviewed the disbursements claimed on behalf of the third party and find them to be reasonable.
[23] For these reasons, I fix the costs payable by the defendants to the third party in the amount of $67,432, as claimed.
C. Stephen Glithero J.
Released: September 26, 2013
CITATION: Roth v. Juschka v. Brock, 2013 ONSC 6052 COURT FILE NO.: C-62-09 COURT FILE NO.: C-62A-09 DATE: 2013-09-26
ONTARIO
SUPERIOR COURT OF JUSTICE
Marlene Florence Roth, Estate Trustee of the Estate of Harold Peter Roth, Deceased, and Marlene Roth
– and –
Roy Juschka, Cynthia Juschka and Roth-Juschka Holdings Ltd.
– and –
Allan D. Brock
RULING ON COSTS
C.S. Glithero J.
Released: September 26, 2013