Court File and Parties

COURT FILE NO.: C-1886/12
DATE: 2014-09-08
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sauble Concrete Ltd.,

Plaintiff

AND:

Commercial Transport (Northern) Limited, Defendant

BEFORE: The Honourable Madam Justice Patricia C. Hennessy

COUNSEL:
D. Peter Best, for the Applicant

Gerard E. McAndrew, for the Defendant

HEARD: Written Submissions

ENDORSEMENT ON COSTS

[1] I have reviewed and considered the cost submissions from the parties. The plaintiff, who was successful after trial and who obtained a judgement that exceeded his offer, seeks $24,400 in costs (plus HST and disbursements) which reflects substantial indemnity costs after the date of the offer.

[2] The defendant replies that the requirement for proportionality would make a cost order of $20,000 all inclusive more appropriate.

[3] The plaintiff was wholly successful on his claim and was awarded damages in the amount of $57,454 plus post judgment interest after a trial of two and one-half days. The plaintiff called the former accountant, now retired of the company to give evidence. His fees to prepare and testify are claimed in the amount of $1,710.00.

[4] The plaintiff made an early offer to settle for $30,000 all inclusive, which remained open until the commencement of trial. The defendant did not make an offer.

[5] I have taken into account the factors enumerated under Rule 57, including the time spent, the result achieved and the complexity of the matter, as well as the application of the principle of proportionality; Rule 1.04(1). In addition, I have considered the principles set out in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) and Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.), specifically that the overall objective of fixing costs is to fix an amount that is fair and reasonable for an unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant.

[6] In this case, the plaintiff had obtained default judgement, based on affidavit evidence, for an amount greater that they obtained after trial. This event might have informed their strategy on proportional response to the claim.

[7] Instead the defendant decided to put the plaintiff to the strict proof of every detail and challenged unsuccessfully details of the damages and liability claim. I agree that the defendant should not now plead proportionality in response to the defendant’s costs when they did not conduct this litigation in a manner consistent with that principle. This approach to proportionality was also present in the cost submissions of the defendant who takes issue with the fact that plaintiff’s counsel did not indicate his years of experience. These two lawyers have been practicing litigation in the same small community of litigators for over 35 years. Counsel for the defendant, as well as this court, is well aware of the seniority of counsel for the plaintiff.

[8] Counsel for the plaintiff seeks a very reasonable hourly rate of $400. The dockets were provided and no challenge has been made to their legitimacy. In my view the case was conducted by the plaintiff in an efficient manner, with regard to proportionality.

[9] The disbursement for Mr. Yurich is reasonable. He was on the stand the better part of a day. He is a chartered accountant who was required to prepare to give evidence. There is no reason he should not receive fees simply because he was not proffered as an expert.

[10] In my view, although the fees might on their face appear disproportionate, they are reasonable in the circumstances of this case and the defendant should have considered, with their approach, that these fees would be fairly and reasonably incurred. In the result, an award of fees as requested by the plaintiff would be fair and reasonable.

[11] Order to go: Costs to the plaintiff in the amount of $24,400 plus HST and disbursements for a total of $30,873.

The Honourable Madam Justice Patricia C. Hennessy

Date: September 8, 2014