SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-10-15748

RE: IFC International Freight Consultants Ltd., Plaintiff

AND:

United Business Corporation, Load Solutions Inc., and Sharda Transportation Ltd., Defendants

BEFORE: Master Lou Ann M. Pope

COUNSEL: Kenneth R. Peel, for the Plaintiff

James S.G. Macdonald, for the Defendant, Load Solutions Inc.

HEARD: Submissions in writing

Costs Endorsement

[1] Pursuant to my decision rendered September 10, 2013, the plaintiff was granted summary judgment against the defendant, Load Solutions Inc. (“Load”), and costs of the motion and the action.

[2] The parties made costs submissions in writing.

[3] This action was commenced on December 23, 2010 pursuant to the simplified procedure rules in Rule 76. The claim is for payment of the sum of $60,000. No examinations for discovery were conducted; however, mediation was held.

[4] The plaintiff served an offer to settle on all defendants on November 3, 2012. It is not disputed that the offer was a valid Rule 49 offer and that the plaintiff is entitled to the costs consequences as provided in rule 49.10(1) as it obtained a judgment more favourable than the terms of the offer to settle. Therefore, the plaintiff is entitled to partial indemnity costs to the date the offer to settle was served and substantial indemnity costs from that date.

[5] The plaintiff seeks fees for the action of $46,442.50 plus HST of $6,037.53, and disbursements of $2,101.08, for a total of $54,581.11. Notably, the amount claimed for costs is almost equal to the amount claimed in the action.

[6] Load disputes many of the amounts claimed and the calculations made by the plaintiff as succinctly set out in its submissions. In particular, the plaintiff was not awarded full indemnity costs and, secondly, it was awarded costs of the motion and the action against Load only, not its entire costs of the action.

Costs - Post Rule 49 Offer to Settle

[7] The plaintiff is entitled to its costs of the action from November 3, 2012 to September 10, 2013 on a substantial indemnity scale.

[8] The plaintiff seeks substantial indemnity costs of $24,952.50 for fees for this period. Of this amount, a portion relates to the motion which was brought against Load only. Therefore contrary to Load’s submission, the plaintiff is entitled to substantial indemnity costs of the motion without reduction of two-thirds. The plaintiff’s costs outline (up to February 22, 2013) sets out that fees for the motion and appearance to argue the motion total $13,297.50. Unfortunately the plaintiff’s bill of costs fails to set out the total costs of the motion. Pages 5 through 8 of the bill of costs contains essentially a very wordy summary of every step conducted for the motion. The costs outline indicates that Mr. Peel spent 24.6 hours in total for this motion.

[9] The defendant relied on no jurisprudence for the submission that communications with a client are not compensable. In my view, case law supports the fact that communications with a client are compensable.

[10] I disagree that the plaintiff should not be entitled to the time spent making submissions on the motion on the law relating to deemed admissions and requests to admit (para. 2 vii of Load’s submissions). The plaintiff was successful in obtaining summary judgment against Load. Although the plaintiff did not succeed on the alternative relief sought, I ordered that the plaintiff was entitled to costs of the motion (Reasons for Endorsement, September 10, 2013, at para. 69).

[11] Of the $24,952.50 claimed for fees, the plaintiff is allowed the following amounts:

a) The plaintiff is allowed fees for 24.6 hours for the motion at a substantial indemnity rate of $405 per hour for a total of $9,963. This amount is reduced by $1,732 to $8,231 for travel to Windsor to argue the motion, plus HST of $1,070.03 for a total of $9,301.03. This amount is not reduced by two-thirds as submitted by the defendant because the motion was brought against Load only.

b) $24,952.50 is claimed for this period, less $11,070 for the motion (based on 24.6 hours at $450 per hour as claimed, leaves $13,882.50 being claimed for this period). At $450 per hour as claimed, $13,882.50 represents 30.85 hours. 30.85 hours is divided by three for each defendant, or 10.28 hours relative to Load, multiplied by $405 per hour being the substantial indemnity rate, totals $4,163.40, plus HST of $541.19 for a total of $4,704.59. I decline to reduce this amount further for costs associated with the status notice and status hearing as the notice pre-dated my decision and thus related to all defendants.

[12] For the above reasons, the amount awarded to the plaintiff for the period following the offer to settle, on a substantial indemnity basis is $14,005.62. This amount does not include disbursements which are addressed later. In my view, this is a reasonable amount for fees for a period of some 10 months from November 3, 2012 to September 10, 2013 on a substantial indemnity scale.

Costs – Pre Rule 49 Offer to Settle

[13] The plaintiff is entitled to its costs of the action from August 2010 to November 3, 2012 on a partial indemnity scale.

[14] The plaintiff seeks partial indemnity costs of $25,818.41 for fees for this period which includes the fees of both the plaintiff’s former lawyer, Mr. Wright, and its present lawyer, Mr. Peel.

[15] I concur with Load’s submission that the fees claimed for this period relate to all defendants and therefore they must be reduced by two thirds.

[16] Based on Mr. Wright’s ledger, the plaintiff is allowed $13,392.50 (53.57 hours at $250 per hour partial indemnity rate) and $2,119 (42.38 hours for his clerk at $50 per hour partial indemnity rate) for a total of $15,511.50. This amount is reduced by two-thirds to $5,170.50 plus HST of $672.17 for a total of $5,842.67.

[17] Based on the plaintiff’s costs submissions, the plaintiff claims $9,315 for Mr. Peel’s fees (charged at $450 per hour) for this period. The plaintiff is allowed $6,210 (20.7 hours at $300 partial indemnity rate). This amount is reduced by two-thirds to $2,070 plus HST of $269.10 for a total of $2,339.10.

Disbursements

[18] The amount allowed for disbursements is $547.50. The amount claimed is reduced by two-thirds to reflect that the plaintiff was successful against Load only and the fact that the disbursements relate to all defendants. Travel costs of $458.27 are not allowed as it was the plaintiff’s choice to retain out-of-town counsel which should not be borne by Load.

Conclusion

[19] The bolded amounts above total $22,734.89 which includes fees, taxes and disbursements. Load shall pay the plaintiff that amount within 30 days.

Original stamped “Master Pope”

Master Lou Ann M. Pope

Date: January 3, 2014