SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 10-24512
DATE: 2013-01-28

RE: Donald Wilson and Tammy Papetti, Plaintiffs

AND:
RIU and RIU Hotels et al, Defendants

BEFORE: The Honourable Mr. Justice D.A. Broad

COUNSEL:
Plaintiffs Self-Represented but not in attendance

John A. Olah, for the RIU Defendants

Jamie A. Macdonald, for the Thomas Cook Defendants

Robert L. Love, for the Chukka Defendants

C O S T S E N D O R S E M E N T

[1] Counsel for the Riu Defendants (namely Riu and Riu Hotels, Riu Hotels & Resorts, Riu Hotels & Resorts Group, Riu Ocho Rios Hotel, Clubhotel Riu Ocho Rios, Riusa-II and Riusa II S.A.), the Thomas Cook Defendants (namely Thomas Cook Canada Inc., Thomas Cook Canada Inc. carrying on business as Sunquest, Thomas Cook Canada Inc. carrying on business as Bel Air Travel, Thomas Cook Canada Inc. carrying on business as BelAirTravel.Ca, Thomas Cook Canada Inc. carrying on business as BelAirTravel.Com, Belair Tempo Deca and Bel Air Travel Tempo), and the Chukka Defendants (namely Chukka Caribbean Adventures Limited and Chukka Caribbean Adventures) have now submitted their Costs Outlines in accordance with my Endorsement released November 30, 2012.

[2] From a review of the Costs Outlines it appears that procedurally the action did not proceed very far prior to the launch of the jurisdictional motions which have now resulted in a stay of the action as against the moving defendants. All three Costs Outlines indicate involvement of counsel for the Defendants in initial review and analysis, review of pleadings and associated correspondence, and review and analysis of documentary productions. It is not clear that Affidavits of Documents were prepared or served, although the Cost Outline of the Thomas Cook Defendants does mention Affidavit of Documents preparation with some relatively minimal time involvement.

[3] The RIU Defendants seek partial indemnity costs in the sum of $30,503.10 in respect of fees, with a total of $35,714.19 inclusive of HST and disbursements, the Thomas Cook Defendants partial indemnity costs if $18,261.68 in respect of fees, with a total of $22,729.25 inclusive of HST and disbursements and the Chukka Defendants $21,673.00 in respect of fees, with a total of $25,976.89 inclusive of HST and disbursements.

[4] Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, as amended, provides that the costs of and incidental to a proceeding are in the discretion of the court, which may determine by whom and to what extent the costs should be paid.

[5] Rule 57.01(1) sets forth various factors which the court may consider, in addition to the result in the proceeding and any offer to settle made. These factors include the principle of indemnity, including the experience of the lawyer for the party entitled to costs, the rates charged and the hours spent by that lawyer (57.01(1)(0.a)), and the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed (57.01(1)(0.b)).

[6] As pointed out by the Court of Appeal in the case of Boucher v. Public Accountants Council (Ontario) 2004 14579 (ON CA), 2004, 71 O.R. (3d) 291, at para. 26, the overriding consideration on the fixing or assessment of costs as between parties to litigation is what is fair and reasonable for the unsuccessful party to pay, rather than an amount fixed by the actual costs incurred by the successful party.

[7] The Costs Outlines indicate that in relation to the steps prior to the bringing of the jurisdictional motion, the time involvement of counsel and others for the moving parties was as follows:

(a) Riu Defendants - 28.6 hours for senior counsel, 1.5 hours for junior counsel and 35.1 hours for a clerk’s time;

(b) Thomas Cook Defendants - 11.8 hours for senior counsel, 42.8 hours for junior counsel, and 0.2 hours for a clerk’s time; and

(c) Chukka Defendants – 27.3 hours for senior counsel and 1.1 hours for junior counsel.

[8] For the jurisdictional motion, the Costs Outlines indicate a time involvement as follows:

(a) Riu Defendants - 47.0 hours for senior counsel, 37.5 hours for junior counsel and 19.6 hours for a clerk’s time;

(b) Thomas Cook Defendants - 15.5 hours for senior counsel 33.8 hours for junior counsel and 29.3 hours for a student’s time; and

(c) Chukka Defendants – 28 hours for senior counsel and 28.8 hours for junior counsel.

[9] Although the time involvement of counsel for the moving defendants with respect to the pre-motion steps in the proceeding may be perfectly justified within the context of their retainer by their own clients, in fixing the costs payable by the unsuccessful plaintiff I am required to have regard to the factors set forth in Rule 57.01(1) and the principle enunciated by the Court of Appeal in Boucher referred to above .

[10] It appears that for all three moving defendants, there was a heavy involvement of senior counsel in the preliminary steps. For the pre-motion steps involving initial review and analysis, review of pleadings and associated correspondence, and review and analysis of documentary productions, and in an effort to be consistent, as between the parties, I would allow the equivalent of 10 hours of senior counsel time and 15 hours of junior counsel time. Mr. Olah, for the Riu Defendants, has claimed a partial indemnity hourly rate of $280.50, with 37 years experience, whereas Ms. Gomery, for the Thomas Cook Defendants, has claimed a rate of $264.00 with 17 years experience and Mr. Love, for the Chukka Defendants, a rate of $300.00 with 18 years experience. The partial indmnity hourly rate for junor counsel varied between $155.50 for the Riu Defendants, 127.80 and $129.00 for the Thomas Cook Defendants, and $150.00 for the Chukka Defendants. I would allow Mr. Olah’s hourly rate of $280.00 and allow a rate of $225.00 for each of Ms. Gomery and Mr. Love, as well as a rate of $150.00 for junior counsel for all three parties. I would also allow the students’ and clerks’ time and rates as claimed.

[11] In accordance with the foregoing, I would allow the following for fees on a partial indemnity basis with respect to the pre-motion steps:

(a) Riu Defendants - $7,858.00

(b) Thomas Cook Defendants - $4,514.00; and

(c) Chukka Defendants – $4,500.00

[12] The jurisdictional motions were of some complexity, legally and factually, and as dispositive motions, were of significant importance to the parties. It was not known until after the motion materials were served and filed, and after much of the time had been expended, whether the motions would be opposed by the Plaintiffs,. In my view, in applying the pinciples set forth above, the Plaintiffs should reasonably expect the level of time involvement by opposing counsel in motions of this nature and to expect to pay costs, if unsuccessful, commensurate with that involvement. I would therefore allow the full time claimed by the parties for the motions, at the adjusted partial indemnity rates referred to above. It is noted that Mr. Olah, for the Riu Defendants, carried much of the load for preparation of the legal authorities and argument.

[13] I would allow the following for fees on a partial indemnity basis with respect to the jurisdictional motion:

(d) Riu Defendants - $20,350.00

(e) Thomas Cook Defendants - $10, 400.00; and

(f) Chukka Defendants – $4,320.00.

[14] I would allow each party $500.00 for preparation of the Costs Outlines.

[15] I would allow each of the Riu Defendants and the Chukka Defendants $1,500.00 inclusive of HST in respect of disbursements, and the Thomas Cook Defendants $2,000.00 inclusive of HST to allow for airfare for attendance on the motions.

[16] In summary, I would allow costs to the moving Defendants for the action and the motions, and order the Plaintiffs to pay such costs, as follows:

(a) Riu Defendants - $28,708.00 in respect of fees, HST on the fees of $3,732.00 and disbursements of $1,500.00, totalling in all $33,940.00;

(b) Thomas Cook Defendants - $15,414.00 in respect of fees, HST on the fees of $2,004.00 and disbursements of $2,000.00, totalling in all $19,418.00; and

(c) Chukka Defendants – $9,320.00 in respect of fees, HST on the fees of $1,212.00 and disbursements of $1,500.00, totalling in all $12,032.00.

D.A. Broad J.

DATE: January 28, 2013