Superior Court of Justice - Ontario

Court File No.: 11-51390
Date: 20140311

Re: Ugarrit Inc. and Gamal Jebahi, Plaintiffs

- and –

Prakash Pooran, MBA, LL.B., Defendant

Before: Hackland R.S.J.

Counsel:
Miriam Vale Peters and Kathryn Bortolussi, for the plaintiffs

Allison Klymyshyn for the defendant

Ashlee Barber for the non-party Jeffrey Barnabe

Ashley Deathe for the non-party Michel Sicotte

COSTS ENDORSEMENT

[1] The respondents to this motion, solicitors Barnabe and Sicotte, seek their costs. They successfully resisted the plaintiffs’ motion to add them to this action as party defendants (see my reasons dated November 13, 2013 and reported at Ugarrit Inc. v. Pooran (2013) O.J. No. 5158). The court ruled that any claims by the plaintiffs against solicitors Barnabe and Sicotte in their capacity as the plaintiffs’ former solicitors were statute barred.

[2] Solicitor Barnabe claims his costs on a partial indemnity scale. The fees claimed are $12,380. Solicitor Sicotte claims his costs and the fees put forward on a partial indemnity scale are $15,771.

[3] As the two solicitors were successful on the motion they are entitled to their costs and no reasons exist here to depart from the normal partial indemnity scale. Furthermore, I am not persuaded that there is any basis to order that the costs be reserved to the trial judge following the trial of this action, to which the solicitors will not be parties.

[4] Some of the more pertinent considerations in this case in view of the Rule 57 considerations are the following:

• the issues of joining them in a professional negligence action was of great importance to the solicitors’;

• damages of $500,000 was claimed against the solicitors;

• there was a day and a half of cross-examinations and voluminous documentation;

• the plaintiffs’ asserted claims for solicitor-client privilege over otherwise relevant documentation which in the context of the plaintiffs’ allegations, seemed highly questionable;

• the issues were of average complexity and handled appropriately by junior counsel at the discounted rates required by Law Pro;

• on the other hand, a moderate downward adjustment of fees is justified for the total number of hours expended and for some of the delays caused by senior counsels’ unavailability and subsequent late in the day decision to delegate the argument to junior counsel on the file; and

• the plaintiffs’ personal injury claims and related discoverability issues were not abandoned until the argument of the motion, which required counsel for the solicitors to expend more preparation time in the matter than otherwise required.

[5] Having considered the above and the overriding principle in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.), at para. 26, that the court should fix costs in a reasonable amount within the contemplation of the party being required to pay the costs and having scrutinized the bills of costs filed with the court, I award costs as follows:

(a) to solicitor Sicotte, fees in the sum of $12,000 and disbursements in the sum of $1,286, plus applicable HST on both; and

(b) to solicitor Barnabe, fees in the sum of $9,000 and disbursements in the sum of $1,725, plus applicable HST on both.

[6] These costs are payable by the plaintiffs to the responding non-party solicitors Barnabe and Sicotte within 30 days of the release of this endorsement.

Mr. Justice Charles T. Hackland

Released: March 11, 2014

Court File No.: 11-51390
Date: 20140311

SUPERIOR COURT OF JUSTICE - ONTARIO

UGARRIT INC. and GAMAL JEBAHI

- and –

PRAKASH POORAN, MBA, LL.B.

COSTS ENDORSEMENT

HACKLAND R.S.J.

Released: March 11, 2014