Court File and Parties

COURT FILE NO.: CV-12-37653

DATE: 2014-01-7

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Jacob Van Halteren, Plaintiff

and

De Boer Tools Inc., Defendant

BEFORE: The Honourable Mr. Justice C.S. Glithero

COUNSEL:
John W. Findlay, for the Plaintiff

Tyler H. McLean, for the Defendant

RULING ON COSTS

[1] In this action, the plaintiff seeks to recover $500,000 advanced to the defendant, together with accumulated interest. The claim was said to be based on a promissory note.

[2] The defendant defended, denying the promissory note. In return, as a precaution, the plaintiff moved to amend its statement of claim to add an oppression claim under s.248 of the Business Corporations Act.

[3] For written reasons released December 4, 2013, I dismissed the motion to amend as one seeking to raise a new cause of action after the expiration of a limitation period.

[4] The motion took less than half a day.

[5] On behalf of the successful defendant, costs are sought in the amount of $14,512.87 on a partial indemnity scale, and $21,631.97 on the basis of counsel’s actual rate.

[6] These amounts are arrived at by applying a partial indemnity rate of $225 an hour, or an actual rate of $350 an hour to a claim for time spent by counsel in the amount of 50.4 hours.

[7] Counsel for the defendant relies upon the comments of Nordheimer J. in Lawyers Professional Indemnity Co. v. Getto Investments Ltd., 2002 CarswellOnt. 769 at para. 18 in which he indicated that the court ought not to second guess successful counsel on the amount of time spent unless it is “so grossly excessive as to be obvious overkill”. I don’t quarrel with that general principle. In the following paragraphs of that case however, it seems to me that in finding there to be a gross excessive amount of time spent, and hence overkill, Justice Nordheimer was dealing with claims for amounts of time in what he deemed to be a routine motion, that are not terribly unlike those claimed in this case.

[8] Counsel for the unsuccessful plaintiff has provided a bill of costs within his submissions on costs indicating time spent by him in the amount of 21.8 hours, which amount included some other matters over and beyond this particular motion. Accordingly, he suggests that 10 hours of time on the part of counsel for the plaintiff would be the appropriate amount to allow. He does not take any exception to the $225 per hour claimed by counsel for the plaintiff on a party and party basis.

[9] I agree the party and party hourly rate is reasonable. In my assessment, 20 hours of time at that rate would have been reasonable in the circumstances of this case, and having regard to the factors enumerated in Rule 57.01.

[10] Rule 57.01(1)(i) permits me to take into account any other matter relevant to the question of costs. Rule 57.03(1) provides that in contested motions I should fix the costs and order them to be paid within 30 days “unless the court is satisfied that a different order would be more just”. Rule 57.01(4) provides that nothing in that rule or in Rule 57.03 affects the authority of the court … “to award or refuse costs in respect of a particular issue or part of a proceeding”.

[11] The evidence before me indicates that the defendant received the $500,000 that is the original subject matter of the dispute, and that it has not paid anything in return. It denies liability on the note. It did succeed in defeating a motion to amend so as to add a new alternative course of action. The end result is that the defendant received $500,000 from the plaintiff and denies any obligation to pay it back.

[12] In all of the circumstances of this case, I don’t think it is an appropriate one in which to order costs of this motion. There will be no order as to costs.

C.S. Glithero J.

Released: January 7, 2014