ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: C-909-13
DATE: 2014-08-11
BETWEEN:
E. & E. Seegmiller Limited
Plaintiff
– and –
2132483 Ontario Inc. o/a Isle of Innisfree Designs, 2308164 Ontario Ltd. o/a Chym Company, Complete Survey Solutions Inc., Chau, Pulver, Smith & Associates Inc., 1471872 Ontario Inc. o/a Downsview Group, 1471871 Ontario Inc. o/a Downsview Group, 2062338 Ontario Inc., o/a Downsview Group, 2050491 Ontario Inc. o/a Downsview Group, Lee Charpentier, Andrea Yates, Ka Leung Chau a.k.a. Buddy Chau, Gerald Perger a.k.a. Jerry Perger and Margaret Perger
Defendants
J. Greg Murdoch, for the Plaintiff/Responding Party
Theodore P. Charney , for the Defendants 1471872 Ontario Inc. o/a Downsview Group, 147871 Ontario Inc. o/a Downsview Group, 2062338 Ontario Inc. o/a Downsview Group, 2050491 Ontario Inc. o/a Downsview Group, Gerald Perger a.k.a. Jerry Perger and Margaret Perger
David Thrasher for the Defendants 2132483 Ontario Inc. o/a Isle of Innisfree Designs, Lee Charpentier
Jason Cherniak for the Defendants 2308164 Ontario Inc. o/a Chym Company, Ka Leung a.k.a. Buddy Chau
Frank Carere and Chistopher Clemmer for the Defendant Andrea Yates
Krista Chaytor and Faren Bogach for the Defendants Complete Survey Solutions Inc., Chau Pulver, Smith and Associates
HEARD: June 9, 2014
THE HONOURABLE MR. P.B. HAMBLY
Ruling on Costs
[1] I rely on the facts set out in my judgement dated July 8, 2014.
[2] The Chau defendants and Yates did not file material on the motion. I agree with Seegmiller that they are not entitled to costs on the motion. If the motion had been successful Seegmiller would have had to pursue 2 actions. The outcome of the motion was of substantial importance to the parties. The law on severance of civil claims is of moderate complexity. It was adequately reviewed by Seegmiller.
[3] The Downsview defendants submit that Seegmiller did not require 2 lawyers to defend the motion. That may be. However, I cannot find that the work done by Mr. Murdoch and Ms. Davis was duplicated. Ms. Davis charges at a lower rate than does Mr. Murdoch. Her work may have actually resulted in Seegmiler advancing a lower claim for costs than if Mr. Murdoch had done all the work.
[4] I must consider the factors of reasonableness and access to justice as stated by Justice Armstrong for the Court of Appeal in Boucher v. Public Accountants 2004 14579 (ON CA), [2004] O.J. No. 2634 at para. 37. I must also consider the principles set in Tri-S Investments v. Vong, [1991] O.J. No. 2292 by Justice Feldman (as she then was, now Feldman J.A.) as follows:
A judge's function in fixing costs (as contrasted with the role of an assessment officer on a full assessment) is to perform a summary analysis of the cost of the services of counsel for the successful party, then to apply the party/party scale of indemnification to that figure. The purpose of the summary analysis is for the trial or motions judge, familiar with the nature of the proceeding as well as with its substantive and procedural complexity, to ensure that the magnitude of the claimed costs is in keeping with what is warranted in the circumstances. I do not view it to be the court's function when fixing costs to second-guess successful counsel on the amount of time that should or could have been spent to achieve the same result, unless the time spent is so grossly excessive as to be obvious overkill. (quoted with approval by the Court of Appeal by Justice Morden A.C.J.O. in Murano v. Bank of Montreal 1998 5633 (ON CA), [1998] O.J. No. 2897at para. 91)
[5] In my view Seegmiller’s claim for costs on a partial indemnity scale is reasonable. The Downsview defendants shall pay costs fixed at $ 7,802.85 ($7,420.91 for fees + $381,94 for disbursments) within 30 days.
P.B. Hambly, J.
Released: August 11, 2014
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ONTARIO
SUPERIOR COURT OF JUSTICE
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