Court File and Parties

COURT FILE NO.: CV-05-21618

DATE: 2014-11-18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DOROTHY AMYOTTE, Plaintiff

AND:

WAWANESA MUTUAL INSURANCE COMPANY, Defendant

BEFORE: The Honourable Justice D.A. Broad

COUNSEL:
S. Oostdyk, for the Plaintiff

C. Rumeo, for the Respondent

costs ENDORSEMENT

[1] The parties have been unable to agree on costs and have now delivered their submission respecting the costs of the motion. The following is my disposition with respect to costs.

[2] The plaintiff seeks costs on a substantial indemnity rate in the total sum of $6,189, comprised of fees of $4,300, counsel fee for appearance of $500, disbursements of $677 and HST of $712.

[3] The defendant argues that a motion to consolidate the three actions was required and accordingly, it is not appropriate to award costs, as the plaintiff would have had to bear the costs of a consolidation motion regardless of the defendant’s motion. In the alternative, the defendant argues that the amount claimed by the plaintiff for costs is excessive. Moreover, the defendant submits that there is no basis for an award of elevated costs.

Governing Principles

[4] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, provides that "subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the cost shall be paid."

[5] The factors to be considered by the court, in the exercise of its discretion on costs, are set forth in subrule 57.01(1), including, the principle of indemnity and the amount of costs that an unsuccessful party could reasonably expect to pay.

[6] It is well known that the overall objective in dealing with costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful party. The expectation of the parties concerning the quantum of costs is a relevant factor to consider. The court is required to consider what is "fair and reasonable" having regard to what the losing party could have expected the costs to be (see Boucher v. Public Accountants Council (Ontario), 2004 14579 (ON CA), [2004] O.J. No. 2634 (Ont. C.A.) at para. 26 and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, 2005 1042 (ON CA), [2005] O.J. No. 160 (Ont. C.A.)).

[7] The usual rule in civil litigation is that costs follow the event and that rule should not be departed from except for very good reasons (see Gonawati v. Teitsson 2002 41469 (ON CA), [2002 CarswellOnt 1007 (Ont. C.A.)], 2002 41469 and Macfie v. Cater, 1920 401 (ON SC), [1920] O.J. No. 71 (Ont. H.C.) at para 28).

Analysis

[8] I would not give effect to the defendant’s submission that there should be no costs awarded to the plaintiff as she would have had to incur the costs of a motion to consolidate the three actions regardless of the outcome of the defendant’s motion. The argument was virtually entirely devoted to the defendant’s motion to dismiss the second and third action and to strike portions of the Statement of Claim in the first action. The plaintiff was the successful party in respect of those issues. The order that the three actions be tried together followed, without dispute, as a necessary consequence of the dismissal of the defendant’s motion.

[9] However, I do agree that there is no basis for an award of elevated costs and accordingly, the costs in favour of the plaintiff should be on a partial indemnity scale.

[10] In my view, generally a submission that the time spent by counsel for the successful party was excessive should be accompanied by the paying party’s own Bill of Costs or Costs Outline in order to be able gauge that party’s reasonable expectations with respect to costs. In spite of that, applying the principle of proportionality, I do find the time spent by plaintiff’s counsel to be somewhat disproportionate on its face. I would therefore reduce the fee component to $3,200, inclusive of the attendance to argue the motion. I would reduce the photocopying charge from $.45/page to $.25/page and disallow the charge for clerk’s time for scanning, printing and binding which should be subsumed within the per page photocopying expense.

Disposition

[11] On the basis of the foregoing, I would order that the defendant pay to the plaintiff costs, fixed on a partial indemnity basis, in the sum of $4,215.00.

D.A. Broad

Date: November 18 , 2014