ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: CV-11-20

Date: 20141118

B E T W E E N:

ELIZA BENNETT

Edward J. Dreyer, for the Plaintiff

Plaintiff

• and -

J.K. (Jim)MOORE LTD., (c.o.b. Jim Moore Petroleum), STEVE HAGLUND, JOHN DOE, JOHN DOE INCORPORATED, AULTMAN’S HEATING LTD., CHRIS HEASMAN, BECHTEL’S HOME HEAT, TERRY ALLAN BECHTEL, and
DAVID McCOMISKEY and MONIKA McCOMISKEY as Proposed Defendants

Martin P. Forget, for Proposed Defendants David McComiskey and Monika McComiskey

Defendants

Heard: April 1, 2014

CORRECTED DECISION

November 24, 2014: Corrected ONSC number is 6788.

D E C I S I O N O N C O S T S

WILCOX, J.

[1] This matter arose in the context of a lawsuit for damages for alleged negligence leading to a heating fuel oil spill on the Plaintiff’s property. The Plaintiff moved to add or substitute David McComiskey and Monika McComiskey as Defendants in the case and to make consequent amendments to the Statement of Claim. The McComiskeys opposed the motion. Counsel for the Plaintiff and for the McComiskeys indicated that the other parties took no position on the motion.

[2] The motion was dismissed. The costs submissions of the McComiskeys and the Plaintiff have been received and reviewed. The McComiskeys sought costs on a partial indemnity basis of $17,179.58 inclusive of disbursements and taxes. The Plaintiff submitted that costs of $5,000 inclusive was fair in the circumstances.

[3] The McComiskeys, being successful in the motion, are entitled to their costs on a partial indemnity basis. There were no offers made that would affect the determination of the quantum of costs.

[4] With respect to the Plaintiff’s contention that $5,000 would be reasonable, it would have been helpful if the Plaintiff’s counsel had submitted the bill of costs that he would have filed if the Plaintiff had been successful, as suggested in Sumner v. Sullivan 2014 ONSC 2940, 2014 O.N.S.C. 2940 at paragraph 20. That case also quotes authority at paragraph 17 for the proposition that similar cases should produce similar costs results. The difficulty is in determining which cases are comparable. For example, counsel for the McComiskeys proffered the case of Blinn v. City of Burlington, 2010 O.N.S.C. 4867, but the Plaintiff’s counsel pointed out how it can be distinguished from the present case. The Plaintiff’s counsel submitted that the court should consider the case of Sealed Air (Canada) Co. v. ABB Inc., 2012 ONSC 1746, 2012 O.N.S.C. 1746 in which $6,000 in costs was awarded to a proposed defendant which was successful in opposing a motion to add it. Again, on the face of it, arguments could be made that it is distinguishable. Ultimately, I find that the better approach is to look at the rules and basic principles for guidance.

[5] I accept the Plaintiff’s contention that the costs claimed are above the normal range for partial indemnity, which case law indicates should be 50 to 60 percent of the full indemnity rate. Applying a 60 percent rate to the fees claimed for counsel reduces the costs claimed to under $14,000. I am not persuaded that the costs claimed include time spent that was not directly related to the motion, as the Plaintiff suggested. However, I find that the time claimed for the lawyers, over 70 hours, in addition to which there were over 13 hours of clerks’ time, to be excessive.

[6] Having taken into account the factors enumerated under rule 57 and considered the principles set forth by the Court of Appeal in Boucher and Public Accountant’s counsel for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) and Davies and 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, I conclude that an award of costs in the amount of $10,000 inclusive of disbursements and taxes, would be a reasonable one in the circumstances and I order the Plaintiff to pay David McComiskey and Monika McComiskey that amount within 30 days.

Justice James A. S. Wilcox

Released: November 18, 2014