COURT FILE AND PARTIES
COURT FILE NO.: 06-CV-36313
DATE: 20140625
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Keith Murchison, Plaintiff
AND
Export Development Canada, Defendant
BEFORE: Mr. Justice Robert J. Smith
COUNSEL: Keith Murchison, self-represented
Heather J. Williams and Adam Huff, Counsel for the Defendant
HEARD: By written submissions
E N D O R S E M E N T o n C O S T S
Position of the Parties
[1] The defendant seeks costs for the motion heard on March 11, 2014 of $46,379 plus disbursements of $2,980.78 and HST of $6,029.27 for a total of $55,389.05 on partial indemnity basis.
[2] The plaintiff was largely unsuccessful in his motion for production of a more complete affidavit of documents and his challenge of numerous claims of privilege made by the defendant. He submits that the costs claimed are excessive, that his motion caused the defendant to produce 26 documents and to clarify that they were not subject to solicitor-client privilege. He further submits that each party should bear their own costs or alternatively that costs should be in the cause and determined by the trial judge.
Factors
[3] The factors to be considered when fixing costs are set out in Rule 57 of the Rules of Civil Procedure and include in addition to success, the amount claimed and recovered, the complexity and importance of the matter and the principle of proportionality, the conduct of any party which unduly lengthened the proceeding, whether any step was improper, vexatious or unnecessary, or taken through negligence mistake or excessive caution, a party’s denial or refusal to admit anything, any offer to settle, the principle of indemnity, scale of costs, hourly rate claimed in relation to the partial indemnity rate set out in the Information to the Profession effective July 1, 2005, the time spent, and the amount that a losing party would reasonably expect to pay.
Success
[4] In this case the defendant was almost completely successful, as only one document, on which privilege had been claimed, was ordered to be produced. The plaintiff obtained clarification of the way in which the documents were indexed as the defendant had used two different approaches which confused the plaintiff. However, a lengthy motion was not necessary to clarify the indexing of an affidavit of documents.
Complexity and Importance
[5] The issues were not complex but did involve a large amount of time to be spent due to the number of documents involved. The matter of solicitor-client privilege is an important principle but many of documents had already been provided and the overall importance of the documents sought was minimal.
Offers to Settle, Scale of Costs,
[6] There is no conduct by either party that would justify imposing substantial indemnity costs and so costs will be awarded on a partial indemnity basis to the defendant.
Hourly Rates, Time Spent, Proportionality and Reasonable Expectation
[7] The plaintiff does not dispute the hourly rate claimed but submits that the overall amount sought is excessive in the circumstances. I assume that the plaintiff is submitting that the amount of time spent was not proportional to the importance of the matters in issue.
[8] The plaintiff was responsible for bringing the motion which required a large amount of legal time to be spent to respond. The fact that the plaintiff is self-represented is not a valid reason for causing unnecessary legal costs to be incurred.
[9] However, the reasonable expectation of the losing party is an important factor. I have not received any specific evidence of the plaintiff’s expectations or whether they were reasonable or not in the circumstances. However in the circumstances, I find that the plaintiff would have reasonably expected to pay costs of approximately $25,000 in fees for a one day motion, involving disclosure of numerous documents.
[10] The reasonable expectation of the losing party is different from the time reasonably required to be spent and does not mean that the solicitor’s invoice to her client is excessive.
[11] I disallow the amounts claimed for disbursements for flights and hotel expenses for Mr. Huff and fix the disbursements at $1,500 inclusive of HST.
Disposition
[12] Having considered all of the above factors the plaintiff is ordered to pay costs to the defendant fixed in the amount of $25,000 plus HST plus disbursements of $1,500 inclusive of HST, payable in any event of the cause.
R. Smith J.
Date: June 25, 2014
COURT FILE NO.: 06-CV-36313
DATE: 20140625
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Keith Murchison, Plaintiff
AND
Export Development Canada, Defendant
BEFORE: Mr. Justice Robert J. Smith
COUNSEL: Keith Murchison, self-represented
Heather J. Williams and Adam Huff, Counsel for the Defendant
ENDORSEMENT on COSTS
R. Smith J.
Released: June 25, 2014