CITATION: Cory Lafleur v. Lisa Miscio Danis et al, 2015 ONSC 3492

COURT FILE NO.: CV-12-456740

DATE: 20150529

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Cory Lafleur, Plaintiff

AND:

Lisa Miscio Danis et al, Defendants

BEFORE: Himel J.

COUNSEL: Jeffrey Preszler, Robert Preszler and Michael J. Sloniowski, for the Plaintiff

Kerri Kamra, for the Defendant, Lisa Miscio Danis

Meral Kesebi, for the Defendant, Victor Filion o/a Trout Creek Log Homes

HEARD: May 29, 2015

ENDORSEMENT

[1] The plaintiff brought a motion for an order that this action be transferred from Toronto to Welland for trial pursuant to rule 13.1.02 of the Rules of Civil Procedure. The defendants opposed the relief sought and brought a cross-motion to have the action transferred to North Bay. In accordance with the Consolidated Provincial Practice Direction effective July 1, 2014, motions to transfer under Rule 13.1.02 brought in the Toronto Region are to be brought to the Regional Senior Judge or his designate in writing. The Regional Senior Judge delegated the responsibility for deciding this motion to me as Civil Team Leader in the Toronto Region. On April 21, 2015, I released my decision dismissing the plaintiff’s motion and granting the defendant’s cross-motion transferring the action to North Bay for trial. I also ordered that if the parties were unable to agree on costs, they may file brief written submissions according to a timetable. I have now received and considered those submissions and provide my decision on costs.

FACTUAL BACKGROUND:

[2] This action was commenced by the plaintiff in Toronto, Ontario on June 20, 2012. The action arises from a slip and fall incident which occurred on July 7, 2010 in a rental cabin located in the Township of Crystal Falls near North Bay, Ontario. The defendant Lisa Miscio Danis is the owner of the cabin at Tomiko Lake Lodge which was built by the defendant Victor Filion operating as Trout Creek Log Homes. Electrical work was done on the cabin by the defendant Gary Stiller Electric Ltd. The action against the defendant Gary Stiller Electric Ltd. has been dismissed.

[3] The plaintiff is represented by the Preszler Law firm which is based in Toronto. The defendant Lisa Miscio Danis is represented by Kerri Kamra who practises in Toronto. The defendant Victor Filion is represented by Meral Kesebi who practises in Toronto. The plaintiff resides in Welland. The plaintiff alleges that the damages have been sustained in Welland. The plaintiff intends to call family and friends from the Niagara area as witnesses and medical witnesses (treating physicians and experts) who are located in Welland, Hamilton and St. Catharines. When the plaintiff sustained the injury, he attended at the West Nipissing General Hospital for treatment. The attending physician diagnosed fractures to his arm. He was referred to the North Bay General Hospital for a CT scan of his wrist and elbow and was seen by a physician there.

[4] The two defendants reside in the North Bay area. Their witnesses include those involved in the construction of the cabin, a person who cleaned the cabin, the inspector sent by the insurance company after the construction was completed, a representative from Ontario Hydro and the Building Services of the municipality of West Nipissing and the physicians from the West Nipissing General Hospital and the North Bay General Hospital.

[5] The examinations for discovery took place in July 2013 and mediation took place in September 2014. The matter has not yet been set down for trial.

[6] Applying the factors outlined in rule 13.1.02(2)(b) to the circumstances of this case, I was of the view that it is in the interests of justice that the action be transferred to North Bay. I concluded that Toronto, the place named by the plaintiff as the venue for the action, is a place which would be more convenient for counsel but less convenient for the parties and their witnesses.

[7] Applying a holistic approach, I found that the plaintiff was unable to demonstrate that it is desirable in the interest of justice that the action be transferred to Welland. I also found that the defendants were able to demonstrate that a transfer to North Bay is desirable in the interest of justice. The defendants met their onus and demonstrated that it would be significantly better for the trial to take place in North Bay.

POSITIONS OF THE PARTIES ON COSTS:

[8] The defendant Lisa Miscio Danis seeks an order of costs on a partial indemnity basis for the preparation of responding motion materials which were done jointly on behalf of the two defendants. Counsel points out that the plaintiff’s motion to transfer the action to Welland was served late and caused the defendant to have little time to respond and prepare the cross-motion materials. The Costs Outline submitted sets out the fees incurred in the amount of $7,606.00 plus HST of $988.91 and disbursements of $214.42. On the partial indemnity scale, the amount claimed is $4,564.20 plus HST of $596.35. The defendant Lisa Miscio Danis seeks an award of $2,500 plus HST and disbursements of $214.42 on the basis that she was completely successful on the motion to transfer and should be entitled to costs for preparing responding materials. Counsel points to the importance of the issue to the defendant, the late service of materials by the plaintiff and the experience of counsel in arriving at this fee.

[9] The defendant Victor Filion o/a Trout Creek Log Homes seeks an order of costs for the preparation of joint responding motion material. He outlines that his fees incurred were in the amount of $4,100.50 and HST in the amount of $558.29. At a partial indemnity rate the amount is $2,706.33 and HST of $377.05. He asks for an order of costs in the amount of $2,500 plus HST and disbursements in the amount of $194.09 on the basis that the responding defendants were required to carry out a review of the law and prepare responding materials, that the issue is important to the defendants and that the plaintiff’s conduct lengthened the duration of the proceeding by waiting until this late date to move to transfer the action and provided little notice to the defendants.

[10] Counsel for the plaintiff opposes the costs order requested as the Costs Outline claims an amount which is excessive, unreasonable, and the amount of preparation by two counsel is disproportionate to the complexity of the case. Counsel argues that the issue of costs should be reserved to the discretion of the trial judge or, in the alternative, costs should be awarded in a total amount of $1,500 in the cause given that the issues were not complex.

The Law

[11] The jurisdiction of this court to award costs is found in s. 131(1) of the Courts of Justice Act, R.S.O. 1990, C.43 which provides:

131(1) 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 costs shall be paid.

[12] Rule 57.01(1) of the Rules of Civil Procedure sets out the factors for the court to consider on an award of costs and provides:

57.01(1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(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

(iii) 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. O. Reg. 627/98.

[13] Generally, costs follow the event and the successful party is entitled to its costs incurred in bringing or defending the action: see Bell Canada v. Olympia and York Developments Ltd. (1994), 1994 239 (ON CA), 17 O.R. (3d) 135 (C.A.). The fixing of costs is not a mechanical exercise based solely upon a calculation of hours and rates. It involves a consideration of a number of factors set out in Rule 57.01 to determine what is appropriate in the circumstances. The objective is to fix costs in an amount that the court considers as fair and reasonable for the unsuccessful party to pay in a particular proceeding rather than what the actual costs were of the successful litigant: see Boucher v. Public Accountants Council for the Province of Ontario (2004) 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.); Zesta Engineering v. Cloutier (2002), 2002 45084 (ON CA), 164 O.A.C. 234 (C.A.); Moon v. Sher, (2004), 2004 39005 (ON CA), 246 D.L.R. (4th) 440 (C.A.).

[14] Where multiple lawyers are involved in a file including junior lawyers, fees claimed may be subject to adjustment for the duplication that may arise: see Colliers Macauley Nicolls (Ontario) Inc. and EMS Technologies Canada, Ltd., 2010 ONSC 3863 at para. 9.

DECISION

[15] I exercise my discretion and consider this to be an appropriate case in which to award costs. I consider the factors outlined in Rule 57 and in particular, the amount claimed which, in my view, is excessive in part because of duplication of preparation, the result obtained, the complexity (this was not particularly complex) and the importance of the matter to the parties as well as the principle of proportionality.

[16] For these reasons, I exercise my discretion and deem it fair and reasonable in the circumstances of this case to fix costs as follows: the plaintiff shall pay costs of $1,200 inclusive of disbursements and HST to each of the defendants within 30 days for a total of $2,400.

Himel J.

Date: May 29, 2015