SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: 206/03
Location: Peterborough

Date: 2014-01-03

RE: Kim Robert Wallace and Karen Lynn Wallace, Plaintiffs

AND:

Crate’s Marine Sales Ltd. and Carver Boats Corporation (bankrupt), Defendants

BEFORE: Gunsolus, J.

COUNSEL:
John Adair and Gord McGuire, Counsel, for the Plaintiffs

Morris Manning, Q.C., Counsel, for the Defendant Crate’s Marine Sales Ltd.

COSTS ENDORSEMENT

[1] On December 10, 2013, I issued my order dismissing the action and the counterclaim in this matter for delay. I invited written submissions with respect to costs and have now reviewed those submissions in detail.

[2] I agree with counsel for the defendant Crate’s Marine Sales Ltd., that there is no reason to deviate from the usual rule that costs should be awarded to the successful party and that partial indemnity costs should be ordered in this matter. Counsel for the plaintiffs did not argue strenuously to the contrary.

[3] While it could be argued that neither party is without fault in relation to the delay in this matter, the defendant, Crate’s Marine Sales Ltd. was successful in having the claim against it dismissed for delay. Mr. Manning seeks partial indemnity costs of $26,317.79 plus disbursements of $1,548.44.

[4] Mr. Adair, on behalf of the plaintiffs, argues that the court should consider the fact that the defendant is seeking $9,520 in fees calculated as follows: (1) $5000.00 - Counsel fee for appearance; and (2) 10.0 hours at $400 partial indemnity rate, plus HST, for “Attend at Lindsay Court house for motion to compel and motion for summary judgment”. He notes that this amounts to a claim for both a counsel fee for an appearance and additional fees in respect to that same appearance, which could result in double compensation. He also notes that the actual time spent arguing the matter was 3 hours and 15 minutes. Finally, he notes that to this should be added 3 hours for travel time, for a total of $3000 in fees, and not the $9,520 claimed.

[5] In all the circumstances of this matter, including the fact that the defendants were not without fault in relation to the delay of this matter, I am awarding costs to the defendant, Crate’s Marine Sales Ltd. as follows:

(1) Partial Indemnity Costs in the amount of $9,500;

(2) Disbursements of $720; and

(3) HST shall be applied to both the costs and the disbursements as applicable.

“Mr. Justice D.S. Gunsolus”

Date: January 3, 2014