ONTARIO

SUPERIOR COURT OF JUSTICE

2014 ONSC 2269

FILE NO.: 10-23382

DATE: 2014-04-09

B E T W E E N:

Glenda Grayling and Kevin Grayling

Robert J. Hooper, for the Applicants

Applicants

• and -

The Corporation of Haldimand County

W. Colin Osterberg, for the Defendants

Defendants

HEARD: November 21, 22, 25, 26, 27, 2013

COSTS ENDORSEMENT

[1] The successful plaintiffs claim costs in an action for personal injuries resulting from a trip and fall incident occurring in the town of Caledonia on November 25, 2009. The defendant, The Corporation of Haldimand County, was responsible for maintaining the sidewalks in the town of Caledonia at the relevant time.

[2] The plaintiff Glenda Grayling was awarded damages in the amount of $107,755 after a reduction for 50 percent contributory negligence. The plaintiff Kevin Grayling was awarded damages under the Family Law Act in the amount of $5,000 after a similar reduction. There was also a judgment in favour of OHIP in the amount of $328.67. The total award to the plaintiffs was therefore $113,093.67.

[3] The plaintiffs made an offer to settle on October 30, 2013, approximately three weeks prior to the commencement of trial, in the amount of $110,000 inclusive of all claims and interest.

[4] The judgment at trial awarded pre-judgment interest in addition to the amount of $113,093.67 for damages.

[5] The plaintiff claims costs on a partial indemnity basis up to October 30th, the time of its offer to settle and on a substantial indemnity basis thereafter.

[6] Defendant’s counsel submit that I should exercise my discretion under Rule 49.10 and not award substantial indemnity costs arguing that the plaintiff’s offer did not represent a good faith attempt to resolve the claim, but simply represents an attempt to secure costs at a higher rate that the plaintiff’s otherwise would be entitled to with the belief that there was no reasonable prospect that the defendant would accept that offer. I reject that argument. It was open to the defendant to seriously consider any offer made by the plaintiff and decide whether it should be accepted. It is certainly open to a plaintiff to make the kind of offer contemplated by Rule 49.10 in order to be able to recover substantial indemnity costs if the defendant is unwilling to pay what is asked in the offer and the plaintiff recovers more. I see no reason why the plaintiff should not be entitled to substantial indemnity costs given that the defendant’s offer was zero and that the amounts awarded were substantially higher.

[7] So far as the quantum of costs to be awarded is concerned, the overall objective in fixing costs is to come to an amount that is fair and reasonable for the unsuccessful party to pay in a particular proceeding rather than the amount fixed by the actual costs incurred by the successful litigant. Boucher v. Public Accountants’ Council of Ontario, 2004 14579(ONCA).

[8] Even where strict application of 49.10 confers cost consequences upon an unsuccessful defendant when a plaintiff obtains judgment in excess of an offer to settle, the Court is given an overriding discretion to award costs and is not constrained by rigid calculation of hours spent and rates charged. Even where some costs of a proceeding are awarded on a substantial indemnity basis, the successful party is only entitled to their reasonable costs of the proceeding. Resch v. Canadian Tire Corp, [2006] O.J. No 2906 paragraph 19, 20 and 21.

[9] In the award of either partial indemnity or substantial indemnity costs, the hourly rates and quantum of hours should be reasonable and represent an amount that an unsuccessful party could reasonably be expected to pay.

[10] This proceeding can be described as a non-complex matter. The case was a relatively routine broken sidewalk case that turned on factual findings. The issues were primarily those of liability and damages and were not a significant area of dispute. The law with respect to municipal liability with respect to sidewalk imperfections is clear and the primary issue with respect to liability was the height difference of the two sidewalk slabs in question. The evidence with respect to that issue was not overly complicated.

[11] The matter had the same importance to the parties as any personal injury case that is being defended on the issues of both liability and quantum of damages.

[12] Although the action was commenced by the plaintiff’s lawyer, Christopher R. Martin, the trial was conducted by a Robert J. Hooper. I find that there had to be a duplication of effort in trial preparation since both Mr. Hooper and Mr. Martin logged approximately the same number of hours. One would assume that most if not all of the time put in by Mr. Martin was in fact of no benefit since Mr. Hooper did the trial.

[13] I find that the hourly rates claimed were somewhat excessive and that $300 per hour partial indemnity, $450 for substantial indemnity are more in line with a reasonable standard. I find also that the hours claimed are excessive. Although the bill of costs no doubt reflects the time spent by plaintiff counsel on the matter, the total amount of time in my view was not justifiable.

[14] Considering the foregoing I find that a reasonable award of costs is as follows;

Total fees on a partial indemnity basis $25,500

13% H.S.T. $3,316.30

Subtotal $28,286.30

Fees on a substantial indemnity basis $59,000

13% H.S.T. $7,670

Subtotal $66,670

Disbursements inclusive of H.S.T. $14,558.58

Total fees and disbursements including H.S.T. $109,508.88.

[15] Plaintiff’s counsel argues that the prejudgment interest ordered at paragraph 105 of the judgment from October 25, 2010 to the date of judgment should be modified to provide for prejudgment interest from December 2, 2009 to the date of judgment, January 17, 2014 on the basis that plaintiff’s counsel gave notice by letter to the defendant on December 2, 2009. Upon reviewing the provisions of section 128 of The Courts of Justice Act, I am in agreement and paragraph 105 of the judgment should be amended to read that the plaintiffs are entitled to prejudgment interest from December 2, 2009 to the date of judgment.

The Honourable Mr. Justice T.R. Lofchik

Released: April 9th, 2014