Court File and Parties
COURT FILE NO.: CV – 12 - 463954
DATE: 20140425
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Du-Won Kim and New Seoul Insurance Corporation, Plaintiffs
AND:
The Manufacturers Life Insurance Company carrying on business as Manulife Financial, Defendant
BEFORE: Kiteley J.
COUNSEL:
Plaintiff Du-Won Kim is self-represented
M. Blair Anderson, for the Defendant
HEARD: In Writing
ENDORSEMENT AS TO COSTS
In an endorsement dated February 25, 2014 (2014 ONSC 1205), I granted the motion by the defendant and dismissed the action. I directed counsel for the defendant to make written submissions as to costs by March 7, 2014 and directed Mr. Kim to make written submissions by March 24, 2014.
I did receive the submissions from Mr. Anderson together with a detailed costs outline including docket entries and photocopies of invoices for disbursements. In his letter dated March 20, 2014, Mr. Kim did not respond to the amount requested. Rather, he continued to take issue with the conduct of Manulife and declared his intention to appeal.
The costs outline includes a claim for fees in the amount of $45,491.50 plus HST in the amount of $5,913.90 for a total of $51,405.40 as well as disbursements that total $6,434.02 plus HST of $644.47 for a total of $7,078.49 for a grand total of $58,483.89. This is in addition to previous costs orders: April 17, 2013 in the amount of $1,577.90; June 13, 2013 in the amount of $1,384; and July 24, 2013 in the amount of $2,000.
The defendant was successful and is entitled to an order for costs. I have the following comments on the costs outline:
(a) As indicated in paragraph 15 of the earlier endorsement, Mr. Kim made claims for substantial damages based on serious allegations of breach of the duty of good faith and breach of fiduciary duty and other claims. I agree that it was reasonable for Manulife to respond comprehensively and vigorously.
(b) I agree that the motion for summary judgment was properly brought and a useful application of the Rules of Civil Procedure. While the defendant was pursuing that course of action, Mr. Kim insisted that he was entitled to an affidavit of documents (that lists over 10,000 documents) and to examination for discovery. Consequently, considerable work was done to comply with the order made by Master Dash.
(c) Mr. Anderson is an employee of Manulife who dockets his time on an internal chargeback model. He has used the actual chargeback rates for himself ($222 per hour in 2012 and $232 per hour in 2013) and his law clerks ($100 per hour). Since those rates are considerably less than what outside counsel might have charged, I am satisfied that Manulife should recover the full rate.
(d) In the case of the fees, there were several instances where Mr. Anderson and another timekeeper docketed for the same work on the same day. Even at the modest rates indicated above, it is my view that, in this case, the opposing party ought not to be required to pay for that overlap and that some adjustment ought to be made. In addition, there are entries for time spent by Mr. Anderson in travel between Kitchener (where he is based) and Toronto (where multiple court attendances were instigated largely by Mr. Kim) and between Kitchener and Mississauga. In my view, in this case, the opposing party ought not to be required to pay for the fees or the disbursements associated with such travel and that some adjustment ought to be made. Without reviewing the items individually, I will make a global adjustment to reduce fees and disbursements by $4,000.
ORDER TO GO AS FOLLOWS:
- The Plaintiffs Du-Won Kim and New Seoul Insurance Corporation shall, jointly and severally, pay to The Manufacturers Life Insurance Company carrying on business as Manulife Financial, costs of the action fixed in the amount of $54,483.89 inclusive of fees, disbursements and HST.
KITELEY J.
April 25, 2014