Court File and Parties

Court File No.: 10-20364
Date: 2013/12/19

ONTARIO
SUPERIOR COURT OF JUSTICE

RE: Ann Lamb, Plaintiff

AND:
Bank of Montreal and Jane Bank Employee, Defendants

Before: The Honourable Mr. Justice Robert J. Nightingale

Counsel:
Counsel, William G. Scott for the Plaintiff
Counsel, Laura White for the Defendants

Endorsement

[1] The parties have now provided their written submissions with respect to the issue of costs regarding the dismissal of the plaintiff’s action at a contested status hearing under rule 48.14.

[2] The plaintiff does not dispute that the defendant is entitled to its costs on a partial indemnity basis which the defendant claims.

[3] Essentially, the defendant incurred minimal time to file its Notice of Intent to Defend (it did not complete any other pleadings) and its Response to Request to Admit. It also claimed for some time involved for its lawyers with respect to the interlocutory order of Mme. Justice Milanetti including reviewing the endorsement, ordering a transcript of the proceeding, preparation of the draft order and correspondence with the plaintiff’s lawyers. In my view, no such time should be considered in an award of costs of the action as an award for costs was made by the motions judge.

[4] The bulk of the time incurred by the defendant’s lawyers dealt with their preparation of the court documentation and attendance on the contested motion for dismissal of the plaintiff’s action at the contested status hearing.

[5] The defendant’s lawyers suggested they had spent approximately 51 hours for both senior and junior counsel to prepare materials and prepare for the status hearing motion in addition to the approximate six hours of time for the hearing of the motion. No cross examinations on the affidavits of the parties occurred.

[6] The factual and legal issues involved in this case were not complex. They centered around a single issue of whether or not the plaintiff had provided an acceptable or reasonable explanation for the litigation delay.

[7] There appears to be some duplication of effort in the preparation of the defendant’s materials and although it is not necessary to undertake a line by line analysis of the hours claimed, I do consider what is reasonable in the circumstances in an award of costs in this matter in a global fashion after taking into account all of the relevant factors

[8] In my view, no costs should be allowed with respect to counsel’s time spent to provide post hearing submissions on a case that ought to have been included in the original court material although it is appropriate to allow some time for its one page submission on another relevant case authority decided after the hearing but before my decision.

[9] The court’s fixing of costs is not a procedure that merely calculates the hours docketed and using the costs grid. When exercising its discretion, the court should reflect in its costs award the overriding principle that the amount should be a fair and reasonable one including what would be within the reasonable expectation of the unsuccessful party rather than any exact measure of the actual costs incurred by the successful party. Boucher v. Public Accountants Council (Ontario) (2004) 2004 14579 (ON CA), 71 O.R. (3rd) 291 (C.A.); Davies v. Clarington (Municipality) (2009) 2009 ONCA 722, 100 O.R. (3rd) 66 (C. A.).

[10] A fair and reasonable breakdown of the defendant’s costs which are payable by the plaintiff is as follows:

Costs for the action $1500

Preparation for the motion $4500

Attendance on the motion
including post hearing
submissions $4000

Costs submissions $500

Total costs $10,500

HST on fees $1365

[11] With respect to disbursements, the plaintiff did not object to the defendant’s total disbursements including HST of $611.95. The defendant claimed $177.61 for courier costs and $285.50 for filing clerks costs but provided no particulars or supporting documents or an affidavit confirming that those costs were incurred with respect to this status hearing motion or the action as compared to the motion before Milanetti J. The plaintiff objected to their being included as part of its costs under Part 2 of the tariff. Accordingly, those disbursements are not allowed and total disbursements of $611.95 are awarded inclusive of HST.

The Honourable Justice R. J. Nightingale

Released: December 19, 2013