SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

RE: Indcondo Building Corporation, Plaintiff

AND:

Valerie Frances Sloan, David Robin Sloan and Cave Hill Properties Ltd., Defendants

BEFORE: D. M. Brown J.

COUNSEL:
T. Nguyen, for the Plaintiff

P. Healey, for the Defendants

HEARING DATE: July 10, 2013; subsequent written cost submissions.

reasons for decision - costs

I. Positions of the parties on costs

[1] By Reasons dated July 12, 2013 (2013 ONSC 4723), I granted the defendants leave to deliver an Amended Statement of Defence containing certain proposed amendments on specified terms and conditions, dismissed the balance of their motion to amend their Statement of Defence, and dismissed those parts of the motion seeking leave to issue a Third Party Claim and to discharge the two certificates of pending litigation.

[2] The plaintiff, Indcondo Building Corporation, seeks substantial indemnity costs of the motion in the amount of $19,803.50 or, alternatively, partial indemnity costs of $17,102.86, arguing that it was largely successful in resisting the defendants’ motion.

[3] The defendants submitted that success was divided and the plaintiff ultimately consented at the hearing to many of the amendments sought to the statement of defence. The defendants argued that the costs claimed by the plaintiff are excessive. In the view of the defendants, no costs should be awarded or, alternatively, costs of only $2,500.00 should be awarded to the plaintiff.

II. Analysis

[4] I have considered the costs submissions of the parties, together with their Costs Outlines. I have taken into account the factors enumerated under Rule 57, including the time spent, the result achieved, and the complexity of the matter, as well as the application of the principle of proportionality: Rule 1.04(1). In addition, I have considered the principles set forth by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3rd) 291 (C.A.) and Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.), specifically that the overall objective of fixing costs is to fix an amount that is fair and reasonable for an unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant.

[5] Of the three types of relief sought by the defendants on their motion, they only obtained part of one – limited amendments to their Statement of Defence. Even with respect to the proposed State of Mind Amendments for which I granted leave, I questioned their relevance. When the issues on the motion are looked at as a whole, the plaintiff enjoyed substantially more success in resisting the motion than did the defendants in obtaining the limited relief granted. In my view, the plaintiffs are entitled to some costs.

[6] The plaintiff seeks costs on a substantial indemnity basis. While in my May 13, 2013 Case Memorandum I cautioned parties about the cost consequences attaching to motions brought in certain circumstances, the present motion did not fall into either category. Accordingly, I see no basis to depart from the standard principle of awarding partial indemnity costs.

[7] As to the quantum, this was a relatively straight-forward motion, of only modest complexity, which took two hours to argue. The motion records were not complex, although a few cross-examinations took place. The plaintiffs sought to recover more time for senior counsel, who did not appear on the motion, than for junior counsel who did. While the plaintiffs are entitled to recover some of the time spent by senior counsel, including his attendance on the cross-examination of Mr. Sloan, the amount sought is excessive. On reviewing the plaintiffs’ Bill of Costs, I consider reasonable allowing the plaintiffs to recover 10 hours of time for senior counsel at $300/hr (1998 call) [$3,000], plus a total of $3,000 for the two junior counsel’s preparation of the motion record, attendance on the cross-examination of a representative of the plaintiff and attendance at the motion hearing, both inclusive of H.S.T. To that $6,000.00 I would allow recovery of the claimed disbursements totaling $899.00, including H.S.T. That results in a total cost award of $6,899.00, which I consider to be a reasonable amount in the circumstances.

[8] Accordingly, I order the defendants to pay the plaintiff partial indemnity costs of $6,899.00, inclusive of disbursements and H.S.T., within 30 days of the date of this order.

(original signed by)___

D. M. Brown J.

Date: October 12, 2013