Opara v. Bell Canada, 2015 ONSC 3160
COURT FILE NO.: CV-09-379307
DATE: 20150520
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
VICTOR OPARA
Plaintiff
– and –
BELL CANADA
Defendant
Unrepresented and acting in person
Hane Chung and Lisa Alleyne for the Defendant
WRITTEN SUBMISSIONS ON COSTS
COSTS ENDORSEMENT
diamond j.
[1] On April 14, 2015, I released my Reasons for Judgment and dismissed the plaintiff’s claims against the defendant Bell Canada (“Bell”). I invited the parties to serve and file written submissions in the event they could not agree upon on the costs of this proceeding. I set a timetable for the exchange of those written costs submissions.
[2] On April 24, 2015, I received Bell’s costs submissions. Pursuant to the said timetable, the plaintiff’s responding costs submissions were due to be filed on or before May 8, 2015. I did not receive the plaintiff’s responding costs submissions on May 8, 2015. On May 11, 2015, the plaintiff delivered an e-mail to my assistant stating as follows:
“Please be advised that the parties are currently having discussions on costs. As soon as the discussions have concluded, I will let you know.
Should the parties agree on costs, there will not be any need for my responding costs submissions. However, I will respond if there is no agreement.”
[3] In that e-mail, the plaintiff did not provide any deadline for when those negotiations would be concluded. As a result, my assistant requested that the parties confirm whether or not they agreed upon the issue of costs by no later than May 13, 2015.
[4] On May 13, 2015, counsel for Bell advised my assistant that the parties had not reached an agreement on costs. As such, my assistant conveyed my request to the plaintiff that he deliver his responding costs submissions by no later than May 15, 2015.
[5] The plaintiff filed his responding costs submissions in the afternoon of May 15, 2015. Those responding submissions total five pages (as per my request) but contain only one page of costs submissions, with the remaining four pages consisting of the plaintiff taking issue with some of the findings I made in various paragraphs in my Reasons for Judgment. The plaintiff described those findings as, inter alia, “unfortunate”, “lopsided”, “substantially prejudicial” and “a misapprehension of the evidence”.
[6] Without commenting on the appropriateness of the plaintiff making such statements in response to my request for submissions on the issue of costs, I will say the following: (a) if the plaintiff take issues with any portion(s) of my Reasons for Judgment, there are appeal routes available, and (b) this Costs Endorsement was decided solely upon the parties’ respective submissions on the issue of costs.
[7] Counsel for Bell do not docket their time for normal business purposes as they perform those services on an in-house basis. According to its submissions, Bell’s counsel and clerks do nevertheless maintain records of work performed, but the time entries submitted as part of Bell’s Bill of Costs represent only a conservative estimate of the time actually spent.
[8] Excluding the costs associated with two prior motions brought by the plaintiff, Bell is now seeking an order that costs of the proceeding be fixed in the all-inclusive amount of $22,595.37, which sum represents Bell’s fees (inclusive of HST) totalling $19,735.45 plus disbursements (inclusive of HST) of $2,859.92.
[9] It is well established that the fixing of costs is not a simple mechanical exercise, and the Court must consider the reasonable expectations of both the successful and unsuccessful parties in determining a fair and just result. Pursuant to Rule 57.01 of the Rules of Civil Procedure, the Court may consider the following factors when exercising its discretion to award costs:
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and
(i) any other matter relevant to the question of costs.
[10] Bell seeks its costs on a substantially indemnity basis for a few reasons. To begin, Bell delivered two offers to settle. On March 16, 2015, it offered to settle the plaintiff’s claims by way of an all-inclusive payment of $4,000.00 to the plaintiff. On March 24, 2015, Bell withdrew its previous offer and offered to settle the plaintiff’s claims by way of payment of the all-inclusive amount of $7,500.00 to the plaintiff.
[11] Bell’s first offer complies with the provisions of Rule 49.10. Bell’s second offer does not comply as it was not served at least seven days before the commencement of the trial of this proceeding. Notwithstanding, pursuant to Rule 49.13 I may still take Bell’s second offer into account in exercising my discretion with respect to awarding costs of this proceeding.
[12] In addition, Bell submits that given my findings at paragraphs 78-81 of my Reasons for Judgment wherein I found that the plaintiff had failed to adduce any cogent evidence upon which a remedy of damages could have been granted (had I not dismissed the plaintiff’s claims), the plaintiff ought to have commenced or transferred this action to the Ontario Small Claims Court, or at a minimum to the Simplified Procedure. As such, Bell relies upon the provisions of Rule 76.13 of the Rules of Civil Procedure and the costs consequences therein that apply to a party who obtains a judgment of $100,000.00 or less.
[13] In response, the plaintiff submits that since Bell was “guilty” of denying receipt of his letter sent in July 2008, and “negligent” in its handling of his account, I should exercise my discretion and not award Bell any costs of this proceeding.
[14] Clearly Bell is entitled to its costs of this proceeding. The plaintiff’s action was dismissed and there is no basis to depart from the traditional rule that costs shall follow the event.
[15] As Bell’s first offer to settle was delivered in accordance with the provisions of Rule 49.10, it is entitled, at a minimum, to its costs on a partial indemnity basis from the date of that first offer onward.
[16] In exercising the discretion bestowed upon me in Rule 57.01 and the jurisprudence developed thereunder, while Bell was entirely successful at the trial of this proceeding, I also take into account my findings that Bell’s handling of the plaintiff’s account was, on occasion, unprofessional due to a series of “systematic errors” more accurately described in paragraphs 31, 41, 42, 44, 45 and 51 of my Reasons for Judgment. No doubt those “systematic errors” caused the plaintiff some confusion and contributed to his decision to commence this proceeding.
[17] In the circumstances of this case, I order that the plaintiff shall pay Bell its costs of this proceeding on a partial indemnity basis fixed in the all-inclusive amount of $15,000.00.
Diamond J.
Released: May 20, 2015
CITATION: Opara v. Bell Canada, 2015 ONSC 3160
COURT FILE NO.: CV-09-379307
DATE: 20150520
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
VICTOR OPARA
Plaintiff
– and –
BELL CANADA
Defendant
COSTS ENDORSEMENT
Diamond J.
Released: May 20, 2015