BARRIE COURT FILE NO.: 14-0289

DATE: 20140718

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: The Corporation of the Town of Midland, Applicant

AND:

881229 Ontario Inc., Respondent

BEFORE: THE HON. MR. JUSTICE P.H. HOWDEN

COUNSEL: B. Ogunmefun, Counsel for the Applicant

D. Pantling, Self-representing Company

HEARD: By written submissions

COSTS ENDORSEMENT

[1] This matter does not involve a great deal of money. The allowed expenses were $2,368.07. The amount claimed also was not large: $3,874.63, of which the Town has withdrawn its administrative percentage claim in the sum of $645. However, the subjects involved in this case were not just the monetary claim. Also involved, most importantly, was confirmation of the emergency order by the Town’s Municipal Law Enforcement officer. That order concerned the health and life of an occupant of the respondent’s apartment building. The Town was successful.

[2] The offer to settle by the respondent was rejected by the applicant’s council. It was $1,600. I can, of course, consider that offer as one factor among others which include success of the proceeding, reasonable value of the work and disbursements required, and legitimate expectations of the losing party. Neither party prolonged the proceeding. It was heard fairly expeditiously and its length at hearing was not lengthened by the conduct of either party. The subject matter of the application is a factor to be considered as well.

[3] In sum, the respondent’s offer was less favourable than the judgment obtained for the respondent. Therefore, I am not required to alter the normal expectation of which party should bear costs and the amount on that account. The applicant was successful. In my view, it acted properly in conceding its administrative fee.

[4] I see the legitimate expectations of the unsuccessful party and the reasonable value for required work to militate to the lower scale of costs – partial indemnity. That scale is approximately one-third less than the substantial indemnity scale. The Rules set the relationship somewhat differently with the same result: Rule 1.03 requires substantial indemnity to be 1.5 times the partial indemnity level of costs. The respondent was not successful and its offer was not sufficient given the time already invested. The respondent’s claim for costs is denied.

[5] This was not a complex matter. However, the respondent decided to make the applicant prove its case and should pay the costs on a partial indemnity basis. In my view, some of the work done at counsel rate is properly billable at a clerk’s rate. Substantial indemnity costs I see as in the range of $5,000 to $5,500, given the work properly required and its value.

[6] I fix the applicant’s costs at $3,500 plus disbursements. The respondent shall pay costs fixed at $4,098.39 plus HST.

HOWDEN J.

Date: July 18, 2014