ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-12-009
DATE: 2013-11-20
BETWEEN:
The Corporation of the Township of Seguin and Debbie Swim, Chief Building Official of the Corporation of the Township of Seguin
Applicants
– and –
Paul Bak
Respondent
Michael M. Miller – RUSSELL, CHRISTIE LLP and Gerard A. Chouest – BERSENA JACOBSEN CHOUEST (THOMSON BLACKBURN LLP), for the Applicants
Mark Veneziano and Dena N. Varah – LENCZNER SLAGHT ROYCE SMITH GRIFFIN LLP, for the Respondent
J.S. O’Neill
RULING ON COSTS
[1] On October 2, 2013 I released my reasons in relation to this Application. I have since had the opportunity to review the costs submissions of the Applicants dated October 18, 2013 and the costs submissions of the Respondent dated October 31, 2013.
[2] S. 131(1) of the Courts of Justice Act provides:
Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.
[3] At p.1233 of Ontario Annual Practice, 2013 – 2014, a synopsis is set out with respect to Rule 57 – Costs of Proceedings. I reproduce below a portion of that synopsis as follows:
This rule sets forth the factors to be considered by the court in exercising its discretion under s. 131 of the Courts of Justice Act, placing emphasis on the result in the proceeding and any written offer to settle.
Effective January 1, 2002, party and party and solicitor and client costs were replaced with “partial indemnity” and “substantial indemnity” costs. Until July 1, 2005, Rule 57.01 and 57.03 required the court to fix costs in accordance with a costs grid established by Part 1 of Tariff A, except “exceptional” cases when the costs could be referred for assessment under 58.
Effective July 1, 2005, the costs grid was revoked, given a number of Court of Appeal decisions critical of bills of costs and awards that were mathematical applications of the grids hourly rates to hours expended. It was replaced by reliance on the discretionary factors set out in Rule 57.01(1) , now supplemented by reference to the principal of indemnity (including the experience of the lawyers, the rates charged and the hours spent by the lawyer), and the amount of costs that an unsuccessful party could reasonably expect to pay. In addition, the power to award costs on a “full” as opposed to “substantial” indemnity basis, and to an unrepresented party is clarified.
[4] I have reviewed the partial indemnity bill of costs of the Applicants, and in general, the steps taken to achieve finality in relation to the Application appear to be reasonable. Of course, those steps can also be measured, to some extent, by the results in the proceeding.
[5] Clearly, this case was of importance to all of the parties, and it involved some unique aspects of the law. The Applicants were successful in the outcome.
[6] There is merit in the submissions made by the solicitors for the Respondent, to the effect that having been charged approximately $90,000.00 for legal fees and disbursements, the Respondent could thereby submit that Rule 57.01(1) (0.b) bears importance as one of the factors to seriously consider in the exercise of a costs discretion.
[7] I am not in a position to second guess the attendance of Mr. Chouest at other cross examinations, apart from Mr. Keith Reilly. On the other hand, I accept, to some degree, that there are cases where partial indemnity rates will be found to amount to approximately 60% of the fees. However, there is no hard and fast rule for this calculation.
[8] Failing settlement, parties in a litigation case must know that at the end of the day, one and often both parties will ask the court for an award of costs. Parties also know that failing settlement, they will have to present well prepared and well researched cases to the court for determination. Litigation parties do not want to be in the position of second guessing the efforts and steps required to secure a favorable result.
[9] I have reviewed the taxable and non taxable disbursements and I find them reasonable in the circumstances. Accordingly, in the exercise of my costs discretion, and for the reasons herein given, I would fix the legal fees, on a partial indemnity basis, at $65,000.00 and fix the final costs award as follows:
Legal Fees $65,000.00
HST on Fees $8,450.00
Total disbursements $9,519.22
HST on taxable disbursements $1,122.95
Total fixed costs $84,092.17
[10] An order is herein made that the Respondent pay to the Applicants, costs in the sum of $84,092.17 on or before January 31, 2014.
[11] Order accordingly.
Justice J.S. O’Neill
Released: November 20, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Corporation of the Township of Seguin and Debbie Swim, Chief Building Official of the Corporation of the Township of Seguin
Applicants
– and –
Paul Bak
Respondent
ruling on costs
J.S. O’NEILL
Released: November 20, 2013