ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-47727
DATE: 2014/10/01
BETWEEN:
Deslaurier Custom Cabinets Inc.
Plaintiff
– and –
1728106 Ontario Inc. and John Faught Steel Inc.
Defendants
Matthrew J. Halpin, for the Plaintiff
Emily Stock, for the Defendant 1728106 Ontario Inc.
Teena Belland, for the Defendant John Faught Steel Inc.
HEARD: By written submissions
DECISION ON COSTS
Métivier j.
[1] A motion and cross-motion for summary judgment were heard in this matter, a case involving a fire and resultant damage.
[2] An interpretation of the lease between the parties was required. My decision rendered on September 5, 2014 assigned to the Landlord (1728106 Ontario Inc. or “Renfrew”) the responsibility and liability for indemnifying the Tenant, Deslaurier.
[3] The successful party submits that the legal issues raised were complex and, considering the amount claimed and recovered, merits partial indemnity costs in the upper end of the partial indemnity scale.
[4] The plaintiff sets out his costs on a partial indemnity scale at $151,491.90 with taxes of $21,125.37, plus disbursements, for a total of $183,986.92.
[5] I note the fees charged are for three lawyers, one student at law and one law clerk.
[6] The defendant (Renfrew) resists the fees and disbursements claimed on several grounds. These are set out below.
1. Reasonable Expectations:
[7] The unsuccessful plaintiff points out that its own partial indemnity costs are $65,231.79. Thus, Deslaurier’s costs are 2.8 times more than Renfrew’s own partial indemnity costs and this is unreasonable.
[8] Further Renfrew submits it had no expectation of paying costs for work done outside the scope of the summary judgment motion. Therefore, the amount of $22,302.00 for work in 2009-2010 is over reaching.
[9] As well, says Renfrew, work in 2011 and 2012 related to a different motion involving the welder (John Faught Steel Inc.) who did not participate in this summary judgment motion. As well, time spent on the issue of quantum was not before the court, pursuant to an agreement between the parties.
2. Excessive Time:
[10] Renfrew responds to the complexity issue by pointing out that the facts were not in fact complex, and did not necessitate two lawyers for the plaintiff attending discoveries.
[11] It is also submitted that Deslaurier’s full indemnity costs of $298,110.19 is to be compared to Renfrew’s of $105,236.05.
3. Rates for Student and Law Clerk
[12] These are said to be in excess of the costs grid – amounting to a difference of ($1,215.00 and $1,653.70) $2,868.70.
4. Use of Two Counsel
[13] Renfrew states this resulted in duplicated fees and fees for only one counsel should be awarded.
5. Disbursements are Unreasonable
[14] Renfrew submits that $12,800.45 is excessive and that disbursements in the range of $8,000.00 are more appropriate.
6. Renfrew’s Request for Costs
[15] Over all, Renfrew submits that fees of $55,000.00 would be reasonable.
7. Analysis
[16] I agree that the fees set out in Deslaurier’s Bill of Costs are excessive and for two reasons:
a) There is an obvious duplication of effort, particularly with two counsel on the file at all times.
b) Further, fees related to a motion involving the welder and the time spent litigating the quantum issue, should not be entirely subsumed in costs for this summary judgment motion.
[17] I find that an amount of $100,000.00 in costs would be a reasonable expectation of the unsuccessful party, since the plaintiff’s claim was at risk of being dismissed and the legal argument, if not the facts, was complex.
[18] I also reduced the fees of the non-lawyers involved by $2,800.00, as submitted by Renfrew.
[19] With respect to disbursements, I have removed those items not included in Tariff “A”, including the insurance adjuster’s fee of $901.00 and transcript costs of $1,179.00.
[20] I fix disbursements at $8,000.00 plus taxes.
[21] The total lawyers’ fees are now $87,027.30; the non-lawyers’ fees $4,972.70 and the disbursements of $8,000.00 plus taxes on taxable disbursements.
The Honourable Madam Justice Monique Métivier
Released: October 1, 2014
COURT FILE NO.: 10-47727
DATE: 2014/10/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Deslaurier Custom Cabinets Inc.
Plaintiff
– and –
1728106 Ontario Inc. and John Faught Steel Inc.
Defendants
DECISION ON COSTS
Métivier J.
Released: October 1, 2014