ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-CV-417574

DATE: December 3, 2013

BETWEEN:

KING LOFTS TORONTO I LTD. and KING LOFTS TORONTO II LTD.

Plaintiffs

– and –

P. MARTIN EMMONS, FRASER MILNER CASGRAIN LLP and FIRST CANADIAN TITLE INSURANCE COMPANY LTD.

Defendants

Melvyn L. Solmon for the Plaintiffs

Anne E. Posno for the Defendants P. Martin Emmons and Fraser Milner Casgrain LLP

HEARD: In writing

PERELL, J.

REASONS FOR DECISION – COSTS

[1] The Defendants P. Martin Emmons and Fraser Milner Casgrain LLP brought a motion for summary judgment or in the alternative for security for costs. I dismissed the motion, and I granted a summary judgment to King Lofts Toronto I Ltd. and King Lofts Toronto II Ltd. See King Lofts Toronto I Ltd. v. Emmons, 2013 ONSC 6113.

[2] The parties agreed to resolve the matter of costs subject to the matter of the Plaintiffs’ claim for the disbursement for the expert report of William Friedman. More particularly, the parties agreed that King Lofts should recover costs of $25,000 plus HST and what the court awards for Mr. Friedman’s work.

[3] Mr. Friedman was called to the bar in 1975 and is an experienced real estate lawyer. King Lofts seeks $13,000 plus HST for Mr. Friedman’s work. The Defendants submit that this claim is excessive and ought to be reduced to $2,000 plus HST.

[4] Mr. Friedman billed for a total of 46.3 hours of work performed by him and by an articling student. Of the 46.3 hours, 25 hours was for research and 5.9 hours was for writing and editing a memorandum of law, which the Defendant argue would not have been admissible as an expert opinion. Mr. Friedman charged for his 11 hours of time at $750.00 per hour and the articling student’s rate was $175 per hour.

[5] The Defendants submit that the number of hours docketed by Mr. Friedman and the student is excessive and the $750 hourly rate for the 11 hours of his docketed time excessive.

[6] Although they do not provide any invoice or dockets, the Defendants point out that their own expert, Louis Radomsky, charged $1,695 plus HST and that Mr. Friedman’s fee would exceed the partial indemnity fee for the senior lawyers for either side. Further, the Defendants point out that I found that the expert evidence of both sides was beside the point and not helpful.

[7] King Lofts submits that the entire account of Mr. Friedman is reasonable and should be awarded as a proper disbursement. In the alternative, if there was a reduction, King Lofts submits it should be no more than a $2,850 reduction of the fee.

[8] A very significant factor in the exercise of the court’s discretion with respect to costs and an overriding principle that is acknowledged in rule 57.01(1) is that the amount of costs be reasonable and fair. Rather than reflecting with mathematical precision the actual costs incurred by the successful litigant, the amount of costs should be fair and reasonable in all the circumstances, which may be determined, in part, by considering the reasonable expectations of the parties, most particularly the unsuccessful party: Boucher v. Public Accountants Council for the Province of Ontario (2004) 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).

[9] The same approach is applied to the recovery of fees paid to an expert witness. In Pearson v. Inco Ltd., [2002] O.J. No. 3532 (S.C.J.), Justice Nordheimer stated at para. 20:

[T]he approach to the recovery of fees paid to expert witnesses ought to be exactly the same as the approach to the fees to be recovered by counsel. The court should consider what is fair in terms of hours and rates as well as the overall amount and should then fix an amount which it is reasonable for the losing party to pay. In so doing, the court is not bound by what the client may have actually had to pay the expert.

[10] In my opinion, in all the circumstances of the case at bar, the fair and reasonable award for Mr. Friedman’s work is $9,000.00 plus HST.

[11] Order accordingly.

Perell, J.

Released: December 3, 2013

COURT FILE NO.: 11-CV-417574

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KING LOFTS TORONTO I LTD. and KING LOFTS TORONTO II LTD.

Plaintiff

‑ and ‑

P. MARTIN EMMONS, FRASER MILNER CASGRAIN LLP and FIRST CANADIAN TITLE INSURANCE COMPANY LTD.

Defendants

REASONS FOR DECISION - COSTS

Perell, J.

Released: December 3, 2013