ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 09-50980
DATE: 2014-21-08

B E T W E E N:

Harry Kechichian

Taylor Robertson, for the Plaintiff

Plaintiff

• and -

James McIntyre

Douglas Green, for the Defendant

Defendant

HEARD: June 23, 25 and 26, 2014

COSTS JUDGMENT

WHITTEN, J.

I. Introduction

1On February 9^th, 2008, the Plaintiff, Harry Kechichian (“Harry”) was finishing up the installation of some floor paneling at the home of the Defendant, James McIntyre (“James”). The two had in a way become amicable, a sense which was evident in their testimony at trial. At one point, Harry was cutting flooring outside James’ house using a table saw sitting on a concrete pod. Harry, having made a cut, stepped back. But for whatever reason he tripped, falling forward and consequently severing the top joint of his thumb. It was believed that James had contributed to this severance by negligently placing a piece of flooring in the vicinity of Harry.

2An action was commenced on Harry’s behalf pursuant to the Occupiers’ Liability Act. Discoveries were conducted in September 2010. The Defendant, represented by counsel furnished by the insurance company providing householder insurance, offered in February 2011 a dismissal without costs. There was a judicial pretrial. In March of 2014, the Plaintiff, Harry, through counsel offered to resolve the matter with damages at $50,000 plus the OHIP subrogated interest, plus costs and interest. By June 16^th, 2014, the parties had agreed for the purposes at trial to limit general damages to $40,000, and any special damages to $40,000. In passing, it should be noted that James, through counsel, had elected trial by jury.

3The jury trial lasted less than two and a half days in June of this year. The sole question for the jury was whether James was liable for having breached the standard expected of an occupier pursuant to the statute. It was a trial devoid of any legal argument. A very basic trial in which the two friends testified. The jury evidently was not satisfied that there was a breach of a statutory duty and found no responsibility on the part of James with respect to the severed thumb tip.

II. Issues

4It is now incumbent upon the court to decide in accordance with the discretion of a jurist pursuant to Section 131 of the Courts of Justice Act, and the principles enunciated in Rule 57 of the Rules of Civil Procedure the entitlement to costs of James and the appropriate quantum.

III. Analysis

a) Entitlement

5As is oft said, a judicial discretion is to be exercised fairly, with a view to the specific values and interests in a proceeding.

6As there was a Rule 49 offer, one starts from the proposition that James would be entitled to his costs on a partial indemnity basis up to the making of the offer and a substantial basis from the time of the offer forward, given that the verdict was far better than that offer. However, the presence of an offer is one of the many factors enumerated in Rule 57.01. The rule is far broader; it encompasses a consideration of the magnitude of the issues at stake; their complexity, their importance. There is also an eye to the behaviour of the parties and the conduct of the litigation. In this regard, although the matter did not move with particular alacrity, it is impossible to say who if anyone was particularly responsible.

7The trial was a model of simplicity. A single issue case; namely, whether the standard expected of a homeowner had been breached.

8It was factually dependent. It required that the jurors accept the credibility of Harry about circumstances which were not completely clear. Had James actually placed the flooring piece in a way that would jeopardize Harry’s footing? In some ways, the action was a long shot, but as is oft the case when the insurance company makes the offer of walk away without cost, it becomes something of a gamble. Is it worth it to hang in? That decision may have been influenced by the momentum gained through having gone through pleadings, discoveries and a pretrial. In other words, there had been some degree of effort expended by counsel for Harry. Harry in his own way is/was quite engaging, charming. Even though he is apparently impecunious, he presents as a “bon vivant”, a person not easily deterred by the vicissitudes of life, a survivor. I am sure in a way he would embrace the challenge of his day in court. No doubt he would be somewhat influenced by the narrowing down of the quantum sought. Having so noted, insurance companies are obviously entitled to defend such claims as against homeowners, that is part of the benefit to the homeowner.

9If a jurist decides that because the claimant is impecunious, the company, to use the language of the street, should “suck it up”, the jurist would be contributing to a laissez-faire attitude that would lead to abuse of the ability of citizens to litigate.

10Therefore, it would be difficult out of respect for the system as a whole to say that there be no costs payable. However, given the amounts involved, namely, a notch above Small Claims Court, and the fact that there were alternatives to a jury trial (given the effort and resources required, such a trial is like using a hammer to swat a fly): namely, the simplified procedure with affidavits or a summary judgment motion, the costs should be modest.

b) The Quantum of Costs

11The Bill of Costs submitted by counsel for James commences with a description of a flat rate for the services of trial counsel and another. The “flat rate” provides neither calculation of the hours incurred or a description of the actual work done. A “flat rate” may be a product of what is agreed upon between counsel and the insurance company, but does not necessarily inform the court.

12Apparently, 59.1 hours were expended by trial counsel for preparation and the conduct of the trial. Counsel for Harry notes that the trial was certainly within the competence of local counsel, that is absolutely true. This trial did not need any specialization as such, only available in a bigger centre. The actual advocacy in the trial was not of a level that hours of preparation were necessary, the issues were so simple (only one dubious piece of cross-examination relative to the discovery process) that counsel could have “winged it”. It was in essence a Small Claims Court trial. Twenty-five point one hours were dissipated for the trial by a lawyer completely absent from the trial process. One inevitably muses what was the necessity for that person’s contribution, whatever it was?

IV. Conclusion

13Having considered the applicable principles from Rule 57.01 and reflecting upon the above, costs payable by Harry are fixed at $2,500.