NEWMARKET COURT FILE NO.: CV-08-088682-00

DATE: 20131025

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Angelo Lo Faso, Plaintiff (Responding Party)

AND:

The Guarantee Company of North America and Eugen Guci, Defendants (Moving Parties)

BEFORE: THE HON. MR. JUSTICE P.H. HOWDEN

COUNSEL: J.B. Donnelly, Counsel for the Plaintiff (Responding Party)

J.V. Maloney, Counsel for the Defendants (Moving Parties)

HEARD: By written submissions

COSTS ENDORSEMENT

[1] This is an endorsement concerning costs following a motion by the defendant Eugen Guci for an order compelling the plaintiff to submit to an examination by an occupational therapist. The defendant was successful.

[2] Counsel had to be present that morning for approximately one-half day waiting on a list and arguing the motion. The defendant’s counsel claims costs on a partial indemnity basis of:

Fees $3,409.90

Disbursements $ 923.24

Total $4,333.14 (plus HST)

[3] The amount claimed for fees is based on counsel’s time of 4.3 hours and a junior lawyer or paralegal’s time of 9.7 hours. The time claimed on the day of the hearing is 6.5 hours. I was presented with the docket entries for preparation for the plaintiff for comparison and also on the factor in Rule 57.01 of reasonable expectations. He showed 2.25 hours counsel time and 6.18 hours of paralegal time for preparation, not almost 10 hours for the junior or paralegal plus 4.3 hours for counsel.

[4] In fixing costs, the aim is to fix an amount that is fair and reasonable for the unsuccessful party to pay. The applicable factors in this case are the amount in issue in the action which exceeds $2 million and a motion involving law of moderate complexity with some conflict in the decisions and importance of the issue which involves further intrusion into a claimant’s health and time and levelling the playing field. It is an area of familiarity to counsel involved in personal injury work and both counsel come from firms trying cases regularly in that field.

[5] The defendant’s counsel presented no docket entries. I understand that it takes somewhat more time to mount a case than to defend and I will allow $780 for the junior or paralegal’s time and $500 for counsel for preparation that was reasonably required. For counsel fee, I will allow $900, including 3 hours waiting and arguing the case and 3 hours at $80 for driving to Newmarket and back. Counsel is not entitled to a full hourly rate for driving time.

[6] In conclusion, the award of costs on a partial indemnity basis taking into account counsel’s years of experience at the bar is to the defendant Guci as follows:

Fees $2,180.00

Disbursements $ 923.24

Total $3,103.24 (plus HST)

[7] Costs are fixed in this amount, to be paid by the plaintiff within 30 days. So ordered.

HOWDEN J.

Date: October 25, 2013