Court File and Parties

COURT FILE NO.: CV-11-422899

DATE: 20140429

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dunstan Morgan, Plaintiff

AND:

Vitran Express Canada Inc., Defendant

BEFORE: Madam Justice Darla A. Wilson

COUNSEL:
Charles Sinclair, Counsel for the Plaintiff

Thomas A. Stefanik, Counsel for the Defendant

HEARD: By Written Submissions

ENDORSEMENT on costs

[1] This matter proceeded through trial before me and in Reasons For Judgment released November 5, 2013, I awarded the Plaintiff the sum of $80,911.88 in damages for wrongful dismissal. I advised counsel that if the issue of costs could not be resolved, I would accept written submissions and fix the costs. Each side has provided me with their materials.

Positions of the Parties

[2] The Plaintiff advises that prior to trial, he served an Offer to Settle with the term that upon payment of the all-inclusive sum of $75,000 he would resolve the action. It is submitted that the Plaintiff obtained an award more favourable than the amount he was prepared to settle for and consequently, the Plaintiff ought to receive costs on a partial indemnity scale to the date of the Offer to Settle [September 5, 2013] and costs on a substantial indemnity scale thereafter. The total sum, including fees, taxes and disbursements, is $41,500.56.

[3] The Defendant submits that this was a straightforward claim that was brought under the Simplified Procedure rules. The mandated appearances were brief and the trial was 4 days. The Defendant concedes that the Plaintiff recovered more at trial than his offer to settle provided before the trial. Mr. Stefanik agrees that the Plaintiff is entitled to partial indemnity costs to the date of the offer on September 5, 2013 and substantial indemnity thereafter, but counsel takes issue with the hourly rates and the amount of time expended. It is submitted that the hourly rate of Ms. Davies who handled the case and attended at trial ought to be $150/hour on a partial indemnity scale and $200/hour on a substantial indemnity scale. Mr. Stefanik submits that 60 hours of trial preparation which is claimed by Plaintiff’s counsel is excessive and that the Plaintiff is not entitled to claim the time of the student at law who attended the trial. Finally, it is argued that the disbursement for a computer search in the sum of $1,690.01 is not a proper, assessable disbursement.

Analysis

[4] Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 confers on the court the discretion to determine by whom and to what extent the costs of a proceeding shall be paid.

[5] Rule 57.01 sets out the various factors the court may consider, in addition to the results in the case and any offers to settle or contribute, when exercising its discretion.

[6] In fixing the costs of this matter, I am mindful of the principles set forth by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON C.A.), (2004), 71 O.R. (3rd) 291 (C.A.), specifically that the overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant. I am also guided by Rule 57.01(1) which specifies that the reasonable expectation of an unsuccessful party in respect of costs to be paid is a relevant factor which the court may take into account when fixing costs.

[7] I see no reason why costs ought not to follow the event; and it is conceded by counsel for the Defendant that the Plaintiff recovered more at trial than he was prepared to settle for before the trial. Thus, in accordance with the provisions of the Rules, the Plaintiff shall recover his costs to the date of the Offer to Settle on September 5, 2013 on a partial indemnity scale and on a substantial indemnity scale thereafter.

[8] I have reviewed the hours of the lawyers who worked on this file, in particular, those of Ms. Davies who was called to the Bar in 2009. She claims an hourly rate of $220-$225/hour on a partial indemnity scale. In my view, this is somewhat high. I allow her $170/hour. I would not interfere with the rate of $250/hour on a substantial indemnity scale. I do not find the hours excessive.

[9] The disbursements total $5,561.56 inclusive of HST. This includes the $1,690.01 for “computer search”. While it would have been preferable to have had some detail for this disbursement or perhaps an invoice, I accept that it relates to research that was necessary for submissions at trial. I do not find it necessary to reduce the amount of disbursements.

[10] In my view, fees inclusive of taxes of $32,000 plus the disbursements of $5,561.56 are fair and reasonable in all of the circumstances and I fix the costs in that amount, payable by the Defendant forthwith.

D.A. Wilson J.

Date: April 29, 2014