SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: CV-11-4709-00
DATE: 20140801
RE: Duplex Electrical Ltd. - and - Rafat General Contractor Inc.; 2109347 Ontario Limited; and the Bank of Nova Scotia
BEFORE: D.L. Edwards J.
COUNSEL:
Alistair Riswick, for the Plaintiff
Maura Marchioni, for the Defendants
COST ENDORSEMENT
[1] By reasons dated June 18, 2014, I granted judgment to the plaintiff in the amount of $84,567.78 and I dismissed the defendants’ counterclaim.
[2] I have now reviewed the parties’ cost submissions.
[3] The plaintiff seeks costs for fees on a partial indemnity basis to July 17, 2012 in the amount of $5,898 and fees on a full indemnity basis from July 17, 2012 to date in the amount of $39,240, for a total of $45,138. HST on this amount is $5,867.94. In addition, the plaintiff seeks disbursements in the amount of $4,908.33.
[4] The plaintiff notes that it served a notice of offer of settlement, dated July 17, 2012, under Rule 49 offering to settle, for $73,000 inclusive of prejudgment interest, plus costs on a partial indemnity basis.
[5] The defendants delivered an offer to settle on payment to the plaintiff of $25,000 plus HST, all-inclusive, on May 16, 2014.
[6] The plaintiff submits that its offer, which was not accepted by the defendants, was made more than seven days before the commencement of the hearing, was not withdrawn and did not expire before the commencement of the hearing. As the plaintiff obtained a judgment more favorable than its offer, the plaintiff submits that it is entitled to partial indemnity costs until July 17, 2012 and substantial indemnity costs from and after that date in accordance with Rule 49.10(1).
[7] The defendants submit that the costs sought represent over 66% of the amount claimed and is not proportional. The defendants assert that the amount claimed should be reduced to reflect a more reasonable amount, which is more proportional to the amount claimed, and suggests the sum of $25,000.
[8] The defendants take no issue with respect to the amount of disbursements claimed by the plaintiffs.
[9] The plaintiff's counsel submits that, in assessing costs in addition to the amount claimed by the plaintiff, I should consider the counterclaim made by the defendant. In addition, the principle of proportionality is but one factor that I must consider in the exercise of my discretion.
[10] I am satisfied that the hourly rate charged and the hours incurred by the plaintiff's counsel are appropriate when one considers the claim and counterclaim. I am also satisfied that the offer to settle was served in accordance with Rule 49.10(1) and that the plaintiff is entitled to its costs on a substantial indemnity basis from July 17, 2012 onward.
[11] I order that the defendants pay to the plaintiff fees on a partial indemnity basis to July 17 2012 in the amount of $5,898 and fees on a full indemnity basis from July 17, 2012 to date in the amount of $39,240. HST on those fees is $5,867.94. In addition, I order that the defendants pay to the plaintiff the sum of $4,908.33 for disbursements. Accordingly, the defendants shall pay to the plaintiff the sum of $55,914.27 as costs of the action and counterclaim.
[12] Finally, the plaintiff is entitled to prejudgment interest at the rate prescribed by the Courts of Justice Act, being 1.3% from November 16, 2011 to the date of judgment, being June 18, 2014. Prejudgment interest amounts to $2,844.45. Adding the prejudgment interest to the amount of the judgment results in a total judgment in the amount of $87,412.23.
Edwards J.
DATE: August 1, 2014
COURT FILE NO.: CV-11-4709-00
DATE: 20140801
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Duplex Electrical Ltd. - and - Rafat General Contractor Inc.; 2109347 Ontario Limited; and the Bank of Nova Scotia
BEFORE: D.L. Edwards J.
COUNSEL:
Alistair Riswick, for the Plaintiff
Maura Marchioni, for the Defendants
COST ENDORSEMENT
Edwards J.
DATE: August 1, 2014