ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-308660
DATE: 2013-12-16
B E T W E E N:
Matthew Pierce and Robert Pierce
J. Shinehoft, for the Plaintiffs
Plaintiffs
- and -
City of Hamilton
C. Robertshaw, for the Defendant
Defendant
THE HONOURABLE JUSTICE J. R. HENDERSON
COSTS DECISION
[1] The plaintiffs brought this action against the City of Hamilton pursuant to the Occupiers Liability Act as a result of a fall by Matthew Pierce in Scenic Drive Park on October 1, 2005.
[2] The claim of Matthew Pierce and the Family Law Act claim of Robert Pierce proceeded to trial, and were heard over the course of seven days. By way of a written decision dated October 17, 2013 the plaintiffs’ claims were dismissed.
[3] The City of Hamilton now requests that the plaintiffs pay its costs of this action.
[4] As the successful party, the defendant is entitled to its costs of the entire proceeding as against Matthew Pierce and Robert Pierce.
[5] The defendant served a formal Offer to Settle dated August 22, 2013, but I find that it is largely irrelevant. An offer by a defendant to settle by agreeing to a dismissal of the action without costs is usually of no consequence in a costs decision. Therefore, I find that the defendant is entitled to its costs on a partial indemnity basis.
[6] Regarding the Rule 57.01 factors, I find that the unsuccessful party should have reasonably expected to pay the partial indemnity costs of the successful party. There is no reason to deviate from the usual practice.
[7] Further, I find that this case was neither simple nor excessively complex. There were significant factual issues, and certain legal issues regarding the nature of the duty of care. Overall, there was modest complexity.
[8] At trial I find that neither party conducted themselves in a way that unduly lengthened the trial. The evidence and the submissions were generally presented in an efficient manner.
[9] I accept that the issues before the court were important to the parties, but that importance did not extend to the public at large. I accept that the defendant defended this claim vigorously because of the fact that the defendant owned many acres of similar parkland; however this action was primarily fact-specific.
[10] Regarding quantum, I find that the amount requested by the defendant, $89,063.00, is excessive. The plaintiff has shown that there are some unusually high or non-compensable charges in the defendant’s Costs Outline. For example, docket entries for clerk’s time and for correspondence seem unusually high. Moreover, charges for services that relate to the dismissed claims of the other Family Law Act claimants should not be paid by Matthew Pierce and Robert Pierce.
[11] Having reviewed the Costs Outline and the written submissions I will allow legal fees for the trial at a rate of $2,500.00 per day for a full seven days, resulting in legal fees of $17,500.00 for the trial.
[12] I will also allow legal fees for all other legal work including documents, pleadings, examinations for discovery, motions, preparation for trial, submissions, and costs in the total amount of $20,000.00.
[13] I will also allow disbursements as requested in the amount of $3,899.16.
[14] Therefore, the total amount of costs payable is $37,500.00 plus HST of $4,875.00, plus disbursements of $3,899.16, for a total of $46,274.16. This amount is to be paid by Matthew Pierce and Robert Pierce to the City of Hamilton within 30 days. Order to go accordingly.
Henderson J.
Released: December 16, 2013
COURT FILE NO.: CV-308660
DATE: 2013-12-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Matthew Pierce and Robert Pierce
Plaintiffs
- and –
City of Hamilton
Defendant
COSTS DECISION
Henderson J.
Released: December 16, 2013