Ontario Superior Court of Justice
COURT FILE NO.: CV09-013 (Cayuga)
DATE: 2014-04-07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Cassandra Frances Susi
Plaintiff
– and –
Gary Bourke and
Beverly Anne McBain-Bourke
Defendants
W.P. Murray, for the Plaintiff
E. Savas, for the Defendants
SUPPLEMENTARY ENDORSEMENT RE: COSTS
THE HONOURABLE MR. JUSTICE D.J. GORDON
[1] In my reasons for decision, released January 2, 2014, I invited written submissions on the issue of costs.
[2] Both parties sought an oppression remedy, pursuant to Section 248, Business Corporation Act, regarding their involvement in the failed company. The claim and counterclaim were both dismissed.
[3] Mr. Savas, counsel for the defendants, now seeks a cost award of $62,801.09, on a partial indemnity basis. He refers to a Rule 49 Offer to Settle delivered to the plaintiff on August 23, 2012 whereby the defendants offered as follows:
i) they shall pay $35,000.00 to Cassandra Susi net of any counterclaim;
ii) they shall pay Cassandra Susi prejudgment interest on that amount since January 1, 2009;
iii) they shall pay the costs of Cassandra Susi of this action on a partial indemnity basis to the date of this Offer to Settle. However, if Cassandra Susi does not accept this Offer by August 31, 2012, then she shall pay the costs of Gary and Beverly Bourke on a partial indemnity basis from and after September 1, 2012 even if she accepts this Offer to Settle after that date;
iv) the parties shall agree to otherwise dismiss this action and counterclaim, without costs;
v) Cassandra Susi on one hand and Gary and Beverly Anne Bourke on the other shall exchange Full and Final Releases or alternatively, the parties shall execute a Mutual Release in a form satisfactory to their counsel;
vi) no term of this Offer is severable from any other term; and
vii) this Offer shall expire two (2) minutes after the trial of this action commences, unless previously revoked.
[4] As this Offer to Settle exceeded the result at trial, Mr. Savas submits his clients are entitled to partial indemnity costs from August 23, 2012.
[5] Mr. Murray, counsel for the plaintiff, argues that the parties ought bear their own costs. He does not challenge the time or hourly rates presented by Mr. Savas. Rather, he submits the Offer to Settle was one of perpetual variation and, as such, ought not be a factor, relying on Yepremian v. Weisz, (1993), 1993 5483 (ON SC), 16 O.R. (3d) 121 (Gen.Div.) Further, Mr. Murray refers to the discretionary nature of a cost award and the continued success of the defendants in the subsequent business venture.
[6] With respect, I do not accept either argument. The Offer to Settle was not one of perpetual variation but, rather, could be readily calculated regardless of when the Offer would be accepted. How either party dealt with financial matters following the demise of the corporation is not relevant.
[7] When the Offer to Settle was received, Mr. Murray reports his billable time being $35,000.00. Partial indemnity costs, he says, would have been $23,000.00. In result, the Offer to Settle has to be seen as a substantial one in view of the result at trial. Accordingly, in my view, this case calls for a strict application of Rule 49.10.
[8] Accordingly, I conclude the defendants are entitled to partial indemnity costs from the date of the Offer to Settle.
[9] I have reviewed the Bill of Costs, time dockets and disbursements presented by Mr. Savas. The total hours claimed for trial counsel is 130 hours along with 58 hours for the law clerk. The time spent is more than reasonable and reflects the efficiency of experienced counsel and that of his law clerk. The disbursements were all necessary and appropriate.
[10] My only criticism is with the hourly rate requested for trial counsel. The appropriate partial indemnity rate ought be $300.00.
[11] Accordingly, costs are awarded to the defendants in the amount of $56,473.00, calculated as follows:
a) Counsel fee $39,000.00
b) Law clerk 2,900.00
c) HST on (a) and (b) 5,447.00
d) Disbursements 8,109.00
e) Costs submissions 900.00
f) HST on (e) 117.00
D.J. Gordon J.
Released: April 7, 2014
COURT FILE NO.: CV09-013 (Cayuga)
DATE: 2014-04-07
ONTARIO
SUPERIOR COURT OF JUSTICE
Cassandra Frances Susi
Plaintiff
– and –
Gary Bourke and
Beverly Anne McBain-Bourke
Defendants
ENDORSEMENT - COSTS
D.J. Gordon J.
Released: April 7, 2014