SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 10-48044

RE: DONNA SÉGUIN – Applicant v. FRANK E. VAN DYKE - Respondent

BEFORE: The Honourable Mr. Justice Paul Lalonde

COUNSEL: William Sammon, for the Applicant

John Cannings, for the Respondent

HEARD: November 5, 2013

COSTS ENDORSEMENT

[1] On November 5, 2013, I granted the Applicant’s application to declare a contingency fee agreement between herself and the Respondent void and unenforceable. I ordered the Respondent to repay the Applicant $21,922.00. This is my decision respecting costs of that motion.

[2] The Applicant argues that she is entitled to costs on a partial indemnity basis, totalling $22,971.34. The Respondent argues that there should be no costs in the motion, or alternatively that the Applicant’s bill of costs is excessive.

[3] I agree with the Applicant that she is entitled to partial indemnity costs. The Applicant was successful on the motion and the case is important to other plaintiffs who sign contingency fee agreements.

[4] However, I also agree with the Respondent that the Applicant’s request for $22,971.34 in costs is excessive. In exercising its discretion to award costs, the court should make an award that reflects what the court views as a fair and reasonable amount that should be paid by the unsuccessful party, rather than an exact measure of the actual costs to the successful litigant: Zesta Engineering Ltd. v. Cloutier, 2002 25577 (Ont. C.A.) at para. 4. Furthermore, in deciding what is fair and reasonable, the unsuccessful party’s reasonable expectations concerning costs is a relevant factor: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 57.01(1)(0.b); Boucher et al. v. Public Accountants Council for the Province of Ontario et al., 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) at para. 38.

[5] The Applicant’s counsel has claimed an hourly rate of $600.00 for his services. In this jurisdiction, costs based on an hourly rate of $600.00 for someone called to the bar in 1976 are too high.

[6] Furthermore, the Applicant’s bill of costs ascribes 50% of the time for his Examination for Discovery to the Application and 50% to the separate tort action. The actual Examiner’s cost of his Examination was set at 50% on the same basis. I agree with the Respondent that 50% of the costs concerning the Examination for Discovery should not be ascribed to this application. The transcript of the Discovery is comprised of 131 pages and 484 questions. The Applicant relied on answers to 11 questions contained in only 4 pages. The 4 pages represent 3% of the whole Examination.

[7] Finally, the Applicant’s bill of costs includes a $2,500.00 counsel fee for attending and arguing the motion. This was a half-day motion and a $2,500.00 counsel fee is excessive.

[8] The Respondent did not reasonably expect that costs of this motion would be over $20,000.00. The Respondent’s own costs are $13,467.91. Furthermore, the costs for the two previous motions between the parties were assessed at $6,500.00 and $8,000.00 plus HST.

[9] Having considered the costs as claimed and the factors enumerated in Rule 57.01, I find that a fair and reasonable award of costs is $10,000.00. I order that the Applicant shall have her costs of the motion fixed in the sum of $10,000.00 plus HST, payable by the Respondent within 30 days.

Mr. Justice Paul Lalonde

Date: December 16, 2013

COURT FILE NO.: 10-48044

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Donna Séguin – Applicant v. Frank E. Van Dyke - Respondent

BEFORE: Mr. Justice Paul Lalonde

COUNSEL: William Sammon, for the Applicant

John Cannings, for the Respondent

COSTS ENDORSEMENT

Lalonde J.

Released: December 16, 2013