Skeggs v. Aloe-Gunnell, 2015 ONSC 3524

COURT FILE NO.: 26102/13

DATE: 20150601

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Frederick J. Skeggs
Solicitor

– and –

Valve Aloe-Gunnell
Client

Paul Skeggs, for the Solicitor

Neal H. Roth, for the Client

HEARD: In Chambers, on written submissions

A. D. KURKE J.

REASONS ON COSTS

[1] On April 27, 2015, on a hearing pursuant to Rule 58.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, I issued judgment directing a new Costs Assessment as a result of the Client’s having been denied natural justice at the initial Costs Assessment. The Reasons for that judgment are found at [2015] O.J. No. 2119. At my request, the parties have provided written submissions as to the Cost award I should make relating to that proceeding.

[2] This matter involved a hearing of approximately two hours on the afternoon of April 23, 2015. The Costs Assessment at issue was itself relatively brief, judging from the transcript that was provided to the Court.

[3] Mr. Roth, for the Client, seeks fees and disbursement costs totalling $11,637.87. Mr. Paul Skeggs, for the Solicitor, submits that there should be no Costs ordered. In the alternative, if Costs are to be awarded, then Mr. Skeggs submits that Mr. Roth’s proposed Costs are excessive. In the further alternative, he proposes leaving the issue to the next Hearings Officer to decide.

[4] My discretion to award costs derives from s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and that discretion is guided by factors set out in Rule 57.01 of the Rules of Civil Procedure.

[5] I take into account that Mr. Roth was called to the Bar in 1982, and that he devoted 9.75 hours to this case at an actual rate of $500, and a partial indemnity rate of $380 per hour. I find that rate excessive, and out of proportion to so brief and straightforward a matter, for which the Client did much of the preparation: see Rule 1.04(1.1) proportionality. In my view, it should be awarded at $250 per hour on the partial scale. He seeks an appearance fee of $3,000 over and above the hourly rate, which I do not find to be an appropriate expense on so brief a motion. Instead, I allocate an addition 3 hours of time at the partial rate to cover court and incidental time expenditure, which is not otherwise accounted for in the details of his Costs outline.

[6] The issue of natural justice at any hearing is an important one. Mr. Roth submits that Mr. Skeggs should have recognized the force of this claim and, he implies, should have conceded the appeal. It is urged that Mr. Skeggs’ failure to do so unreasonably lengthened the case, and thereby generated greater costs. I do not disagree with the importance of the issue. However, even counsel for the Client devoted a significant portion of his argument on issues unrelated to the natural justice issue; he himself apparently did not consider it to be necessarily conclusive.

[7] It is urged by Mr. Skeggs that the Client should have retained local counsel, and that the Costs award should not reflect additional costs of counsel from Toronto. Mr. Roth, in Reply submissions, detailed the significant efforts undertaken by the Client and himself to find local counsel willing to take on the case, to no avail. I am satisfied that, in the particular circumstances of this case, disbursements relating to travel from Toronto, as listed by Mr. Roth, are appropriate. The disbursements as provided by Mr. Roth, and listed below in Schedule “A”, all appear to be appropriate, and will be reimbursed.

[8] Mr. Roth also submits that the Client should be personally compensated for the time that she spent on this case, gathering, collating, and drafting materials for the appeal. Mr. Roth sets that time at 50 hours, at a rate of $50 per hour. However, I agree with Mr. Skeggs that, while the Client performed duties that a legal professional may have performed in preparation for this appeal, there is no evidence before me that in so acting, she incurred an opportunity cost by foregoing remunerative activity, which I accept to be a prerequisite for such an award: Mustang Investigations Inc. v. Ironside, 2010 ONSC 3444, at paras. 14-23. Costs for the Client’s time will not form part of the award.

[9] Under Rule 57.01(1)(i), “any other matter relevant to the question of costs”, I consider as well the Solicitor’s conduct at the Costs Assessment, which appear to have contributed to the difficulties faced by the Hearings Officer at that Assessment. Lawyers are professionals, who have a duty to uphold the dignity and integrity of the profession, and the public’s respect for the administration of justice, even when a client questions the validity of their legal judgement in the assessment of an account. Such conduct as that exhibited by the Solicitor in this case is bound to increase unnecessarily the adversarial nature of the proceeding, and ought to be discouraged. Rather than leave the Costs issue to the Officer conducting the next hearing, I will make a Costs award, so that I may take this factor into account.

[10] Having considered all of the above, I fix Costs, all in, at $6,000.

Schedule “A”

“Disbursements:

Paid to file Motion $ 127.00

Paid for transportation (air fare) 412.16

Paid for transportation (to and from airports) 124.00

Paid to Court Reporter (Transcript) 159.10

Paid for registered mail (service, filing, etc.) 47.74

Paid for courier charges (service, filing, etc.) 169.59

Paid for photocopying charges 54.41

Total Disbursements: $1,094.00”

A.D. KURKE, J.

Released: 20150601