SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

RE: Siskinds LLP, Plaintiff

AND:

Canadian Imperial Bank of Commerce, Defendant

BEFORE: D. M. Brown J.

COUNSEL:
E. Cherniak, Q.C. and J. Squire, for the Plaintiff

P. LeVay and J. Safayeni, for the Defendant

HEARD: January 22, 2014; written cost submissions.

REASONS FOR DECISION - costs

Costs on motions for summary judgment concerning the interpretation of a contract

[1] By Reasons dated May 28, 2014 (2014 ONSC 3211), I dismissed the motion for partial summary judgment brought by Siskinds LLP and granted the motion for summary judgment of the Canadian Imperial Bank of Commerce, with the result that the action was dismissed.

[2] The parties have filed their cost submissions. The CIBC seeks costs of the action in the amount of $134,428.66 “all-in”, of which $106,964.58 concerned costs of the summary judgment motions. Siskinds submitted that the costs sought were excessive and submitted that reasonable partial indemnity costs for the action should be $88,000.00 “all-in”.

[3] I have considered those submissions, together with the Bill of Costs submitted by the CIBC. I have taken into account the factors enumerated under Rule 57, including the time spent, the result achieved, and the complexity of the matter, as well as the application of the principle of proportionality, the practical application of which the Court of Appeal recently described as “cutting the cloth to fit”.[^1] In addition, I have considered the principles set forth by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3rd) 291 (C.A.) and Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.), specifically that the overall objective of fixing costs is to fix an amount that is fair and reasonable for an unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant.

[4] As to the amount claimed for legal fees, Siskinds conceded that it spent a similar number of hours on the action as did CIBC. I therefore accept the amount of work claimed as reasonable, but I conclude that the partial indemnity hourly rate of $465.00 for CIBC’s senior counsel (1988 call) is a bit too high; instead, I will allow an hourly rate of $425.00. That results in recoverable partial indemnity fees of $95,000.00.

[5] I accept Siskind’s submission that CIBC should not be entitled to recover the cost of its expert because it did not serve an expert’s report: see Rules of Civil Procedure, Tariff A, Part II, Item 26. When the $14,180.50 for the expert claimed by the CIBC is removed, that results in allowable disbursements of $5,584.49.

[6] Factoring in HST on fees and disbursements, one arrives at a partial indemnity cost award of $113,660.00 which I consider to be fair and reasonable in the circumstances, and which I order Siskinds to pay to CIBC within 30 days of the date of this order.

D. M. Brown J.

Date: June 30, 2014

[^1]: Marcus v. Cochrane, 2014 ONCA 207, para. 15.