COURT FILE NO.: C-278-10

DATE: 2014-04-08

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

MIRKO DJERMANOVIC
Plaintiff

– and –

PAUL McKENZIE and PHILIP McKENZIE
Defendants

Mark S. Grossman and Gretchen T. Reitzel, for the Plaintiff

Robert Rogers, for the Defendant

The Honourable Mr. Justice d.a. broad

Costs Endorsement

[1] The parties have now provided their written submissions on costs. The following is my disposition with respect to the costs of the action.

[2] The defendants submit that costs should follow the event and seek partial indemnity fees in the sum of $69,649.00, HST thereon of $9,054.37, and disbursements of $24,165.49. Of the disbursements, $20,490.05 is represented by the fees of the defendants’ two experts for report preparation and trial attendance.

[3] The fees claimed are based upon 150 hours for Mr. Rogers (1979 call) at $325 per hour, totaling $48,750, 78.7 hours for Mr. Dickson (2000 call) at $250 per hour totaling $19,675 and 15.3 hours for a law clerk Ms. Raike at $80 per hour totaling $1,224.

[4] The plaintiff takes no issue with respect to the disbursements claimed. With respect to the hours comprising the fee claim, the plaintiff submits that there was duplication included in Mr. Roger’s time as he was required to take over the file from Mr. Dickson on the eve of trial.

[5] The plaintiff also submits that he has very limited means with which to pay costs and an order for costs will be a significant hardship on him.

[6] In my view there is nothing in the circumstances which would cause a deviation from the normal rule that costs should follow the event. The defendants cited the proposition from Orkin, The Law of Costs (2nd ed) at paragraph 205 that "the fact that the imposition of costs would cause financial hardship is not sufficient to displace the ordinary rule that costs should follow the event."

[7] Although the hourly rate claimed for Mr. Roger’s time on a partial indemnity basis is less than the $350.00 maximum set forth in the Information for the Profession provided by the Costs Subcommittee of the Civil Rules Committee for lawyers of his seniority, it is indicated that the maximum rates would apply only to more complicated matters. This matter was not among the most complicated and, in the particular circumstances of the case, I would allow a partial indemnity hourly rate of $275 for Mr. Roger’s time and $225 for Mr. Dickson's time. I would also reduce Mr. Rogers' total hours to 130 to account for anticipated duplication for having to take over carriage of the matter and to prepare himself for trial.

[8] On the basis of the foregoing I would reduce the fee component to $54,680 plus HST of $7108.40 and allow the claimed disbursements in the sum of $24,165.49 for a total of $85,953.89 in costs to be paid by the plaintiff to the defendants.

D. A. Broad J.

Released: April 8, 2014