ONTARIO
SUPERIOR COURT OF JUSTICE
FILE NO.: 06-22698
DATE: 2014-07-17
B E T W E E N:
Canada Forgings Inc.
Alan J. Butcher, for the Plaintiff
Plaintiff
- and -
Riverside Excavating (Niagara) Ltd., International Marine Salvage Inc., and Remo Benedetti Jr.
Michael Bordin, for the Defendant, International Marine Salvage Inc., only
Defendants
No one else appearing.
HEARD: May 22, 23, 24, 27, 28 and 20, 2013
COSTS RULING
PARAYESKI J.
[1] I have received and reviewed the written costs submissions presented at my request following my ruling on the main issues at trial.
[2] Those main issues were addressed during a five and one half day trial. The action was based upon the tort of conversion. Evidence and argument addressed both liability and quantum. But for the commendable cooperation of counsel, the trial would have been much longer.
[3] It is common ground the defendant International Marine Salvage Inc. is obliged to pay the plaintiff its costs on the partial indemnity scale. It is the amount of those costs that is at issue.
[4] In my ruling, I assessed damages at $270,735, which is just over one half of the amount claimed in pleadings. To be fair, by the time of trial, the plaintiff had somewhat reduced its demands. The plaintiff asks that I award it fees at $120,268 plus HST, together with disbursements at $8,523.23, inclusive of applicable taxes.
[5] In fixing the appropriate amount of costs, I am obliged to have regard to the factors set out in Rule 57.01 (1) of the Rules of Civil Procedure, and to arrive at a figure that is reasonable and fair to both of the parties. The exercise is not an arithmetical one.
[6] While I will not engage in parsing the numbers contained in the costs submissions provided by the defendant International Marine, it is worth noting that when one compares the attendances of counsel for the plaintiff with those of that defendant, one sees that the total hours are roughly twice as high on the plaintiff’s side of the ledger. While it is to be expected, given the evidentiary onus that rests upon a plaintiff, that its counsel will have invested more time than that of the defendant, a factor of two is of legitimate concern. Some of this discrepancy may relate to the fact that the plaintiff changed counsel post pretrial. It is the plaintiff’s prerogative to have done so, but the cost of any inevitable duplication of effort should not be the responsibility of the defendant.
[7] The partial indemnity rates being claimed by the plaintiff are not unreasonable given the experience levels provided.
[8] The disbursement claim is not well broken down or substantiated. Of greatest concern are “trial expenses” claimed at $3,415.97. The explanation provided is that the plaintiff was obliged to “cover time, mileage and expenses for [a] former employee…to attend trial”. While that employee was a necessary witness, in my view he should not be treated, for costs purposes, as an expert witness entitled to payment on the scale shown.
[9] On balance I think it appropriate that the plaintiff be paid costs fixed at the following amounts:
Fees $75,000 plus HST
Disbursements: $5,000, all inclusive.
[10] So ordered.
PARAYESKI J.
Released: July 17, 2014
FILE NO.: 06-22698
DATE: 2014-07-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Canada Forgings Inc.
Plaintiff
- and –
Riverside Excavating (Niagara) Ltd., International Marine Salvage Inc., and Remo Benedetti Jr.
Defendants
COSTS RULING
PARAYESKI J.
MDP:vt
Released: July 17th, 2014