MacFadyen v. MacFadyen, 2015 ONSC 187
COURT FILE NO.: CV-12-0877
DATE: 2015-01-09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CURTIS MACFADYEN as Litigation Guardian for HUGH MACFADYEN
Plaintiff
– and –
VICTORIA MACFADYEN c.o.b. as TORI’S TRAILS, THE J & H RANCH INC. also known as J & H RANCH INC., and JOHN DOE COMPANY
Defendants
Marc Lemieux, for the Responding Plaintiff
Martin Forget, for the Defendant Moving Party The J & H Ranch Inc. also known as J & H Ranch Inc.
Derek Abreu and Amanda Smallwood, for the Defendant Responding Party Victoria MacFadyen c.o.b. as Tori’s Trails
HEARD: By way of Written Submissions
REASONS FOR DECISION ON COSTS OF MOTION
R. MacKinnon J.
[1] The parties advise they have been unable to agree on costs. I have now fully considered their submissions on that issue.
[2] This was a motion for summary judgment in an action arising from an accident which rendered the plaintiff quadriplegic. The use of the accident site property by the parties over a number of years is in issue, as is its use at the time of the accident. The J & H Ranch Inc. (“J & H”) sought summary judgment dismissing the plaintiff’s action against it and, by inference, dismissing the cross-claim of Victoria MacFadyen (“Tori”). It asserted it was neither negligent nor an occupier. It was unsuccessful. I found that at the time of the fall there was strong credible evidence that it remained an occupier. This was an important motion for all parties. The plaintiff’s claims far exceed the available policy limits.
[3] J & H argues that the costs of the motion be reserved to the trial judge. I disagree. There was no divided success. This motion was not the “close call” referenced by Wilson J. in Greer v. Homer (2008) O.J. No. 3093. J & H now argues it was reasonable to have brought its summary judgment motion. That begs the question. It lost. Costs follow the cause. Full or substantial indemnity costs are neither being sought nor will they be ordered.
[4] Counsel for both responding parties presented well their cases in a focused, well organized fashion. For that matter, the motion preparation and oral presentation of all three counsel resulted in a well prepared and focused argument.
[5] That said, costs usually follow the cause. See Rule 57.03(1). From the outset it was clear that credibility and reliability issues were significant. I am not close to being persuaded to do anything other than fix costs of the motion against J & H as the unsuccessful moving party. No different order would be more just.
[6] In fixing costs, a judge is not assessing costs as if he or she were performing the function of an assessment officer. The object of fixing costs is to avoid the delay and added cost of a full assessment. The Court determines what the services devoted to the proceedings are worth. The incurring of costs and time spent by counsel in any litigation is essentially the exercise of judgment. The prudence, foresight and imagination of their judgment must be considered at the time the disbursement was incurred or the work done. It is inappropriate to apply a test of hindsight to determine whether a service or charge was for an extra not reasonably necessary to advance the client’s position. The time to view the decision to commit services to the issue is before the motion.
[7] The motion lasted for most of a day, but could have lasted longer had all three counsel not focused their efforts as they did. The motion conduct of successful counsel for the responding parties was entirely appropriate throughout. Mr. Abreu was counsel for Tori and Mr. Lemieux for the plaintiff. Their partial indemnity claim rates of $200 and $180 are appropriate, as is the rate of Mr. Abreu’s associate, Ms. Smallwood ($150). I am not persuaded that the hours in meetings between Mr. Lemieux and Mr. Littlejohn are fully compensable. Neither is the full charged time by Mr. Abreu for discussions and correspondence.
[8] I have considered all of the discretionary factors set out in Rule 57.01(1), the experience of counsel, the rates charged and the hours spent. I have also considered the principle of indemnity and the amount of costs an unsuccessful party could reasonably expect to pay in relation to this proceeding. I have also considered that the motion was initially scheduled to be heard in July 2014. The parties were then prepared to proceed but were advised by the court that no judge was available, necessitating a rescheduling until October. I take into account that some necessary duplication of preparation time was required.
[9] In coming to the conclusion that I have, I have attempted to be fair to all parties. I repeat that in fixing costs, I am not meticulously assessing them as if I was performing the function of an assessment officer. I have, however, conducted a critical examination of the work performed by counsel for the plaintiff and for Tori.
[10] I have a wide latitude under s. 131 of The Courts of Justice Act and do not consider it to be my role to second guess the time spent by counsel unless the time is manifestly unreasonable in the sense that the total time spent or disbursements incurred were clearly excessive or that the matter was the subject of an unwarranted number of legal personnel. Subject to those matters to which I have referred in these reasons, no other of those exceptions is demonstrated in this case.
[11] As to the motion costs claim of the plaintiff, I fix partial indemnity fees, disbursements, and H.S.T. for the reasons set out above, in the amount of $9,600.00. In addition I award the plaintiff an additional $400 in costs for work for the cost fixing itself. J & H shall pay these sums forthwith.
[12] As to the motion costs claim of Victoria MacFadyen, I fix partial indemnity fees, disbursements, and H.S.T. for the reasons set out above, in the amount of $14,600.00. In addition I award Tori an additional $400 in costs for work for the cost fixing itself. J & H shall pay these sums forthwith.
R. MacKinnon J.
Released: January 9, 2015