SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 09-12253/09-12253A1
DATE: 2014-03-24

RE: Leeann Mitchell

A N D:

Sara Jeckovich, Diana Jeckovich and Pembridge Insurance

BEFORE: The Honourable Madam Justice J. A. Milanetti

COUNSEL:
Jessica Harrison, for Leann Mitchell

Brian G. Sunohara and Jasdeep S. Bal, for Sara and Diana Jeckovich

Christopher Missiuna, for Pembridge Insurance

C O S T S E N D O R S E M E N T

[1] The successful moving party Jeckovich shall have its costs of this motion given their success. Rule 57 sets out the factors I must consider when exercising my discretion to award costs. These are:

a) the amount claimed and the amount recovered in the proceeding;

b) the apportionment of liability;

c) the complexity of the proceeding;

d) the importance of the issues;

e) the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding;

f) whether any step in the proceeding was improper:

(i) improper, vexatious or unnecessary;

(ii) taken through negligence, mistake or excessive caution;

g) a party’s denial of or refusal to admit anything that should have been admitted;

h) whether it is appropriate to award any costs or more than one set of costs where a party:

i) commenced separate proceeding for claims that should have been made on one proceeding, or;

ii) in defending a proceeding separated unnecessarily from another party in the same interest of defended by a different lawyer; and

i) any other matter relevant to the question of costs.

[2] In this matter the factors most critical to my decision are the complexity of the proceeding and the importance of the issues to the parties.

[3] This motion dealt with a conflict of laws analysis given that it involved jurisdiction to bring a proceeding in Ontario, the result of a New York State accident.

[4] Conflict of laws presented a most complex area of the law. The case before me flowed from the quite recent decision of the Supreme Court of Canada in Van Breda.

[5] Each of the counsel before me did an excellent job both in their materials and in their oral argument. The issues were complex and the outcome of significant importance to each of the parties, most particularly I would suggest, to the plaintiff herself.

[6] The parties each acted appropriately throughout and there were no unnecessary, improper, or vexatious steps taken; no party unnecessarily lengthened the duration of the proceeding.

[7] I had asked each of the parties to provide me their Bills of Costs prior to release of my decision and before they knew the outcome. The ranges of fees sought are somewhat instructive.

a) The plaintiff had a Bill of Costs of $11,184.32 on a substantial indemnity basis and $7,777.00 on a partial indemnity scale;

b) The defendant Pembridges’ Bill of Costs was $12,245.03 on a substantial indemnity basis and $8,198.47 on a partial indemnity basis;

c) Jeckovich’s Bill of Costs is for $23,008.54 on a partial indemnity basis;

[8] While a fee comparison sought is not a governing factor in my decision; it is instructive.

[9] I found it interesting that the defendant Pembridge argued against the remedy sought by the defendant Jeckovich. As such, I had argument materials filed against the Jeckovich’s motion by both the plaintiff and the defendant Pembridge. Even so, I find the fees claimed by Jeckovich exceed what would have been the reasonable expectation of a losing party; given that they are three times the partial indemnity costs by each of the losing parties. While I appreciate that the bulk of the work was performed by more junior and thus less expensive counsel, the hours claimed are excessive. While I realize that the original motion materials would have had to be retooled based on the Van Breda decision; the time expended was still inordinately high.

[10] I would award the moving party Jekovic their partial indemnity costs but reduce those to $10,000.00 plus HST (plus $1000.00 plus HST for appearance at the motion) and disbursements (inclusive of HST) of $1,635.78 for a total costs award of $13,935.78.

[11] These costs shall be payable by the plaintiff and Pembridge jointly.

DATE: March 24, 2014

Milanetti J.