CITATION: Suhaag Jewellers Ltd. v. The Alarm Factory Inc., 2015 ONSC 4172
COURT FILE NO.: CV-13-476520
DATE: 20150629
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SUHAAG JEWELLERS LTD.
Plaintiff
– and –
THE ALARM FACTORY INC. carrying on business as AFC ADVANCE INTEGRATION
Defendant
Marek Z. Tufman, for the Plaintiff
Jordan M. Black, for the Defendant
WRITTEN SUBMISSIONS ON COSTS
COSTS ENDORSEMENT
Diamond j.:
[1] On June 4, 2015, I granted the defendant’s motion for summary judgment and dismissed the plaintiff’s action as a result of the operation and application of an exclusion clause set out the agreement between the parties.
[2] I invited costs submissions from both parties and have now received and reviewed those submissions. The defendant seeks costs of the action, including its motion for summary judgment, on a partial indemnity basis fixed in the amount of $16,314.93. More than 80% of that sum relates to fees and disbursements incurred by the defendant through the prosecution of its successful motion for summary judgment.
[3] For its part, the plaintiff takes no issue that costs ought to follow the event, and that the defendant is entitled to its costs of the action, inclusive of its motion for summary judgment, on a partial indemnity scale. The plaintiff also concedes – properly in my view - that the hourly rates charged by counsel for the defendant are reasonable.
[4] Essentially, the plaintiff takes issue with the number of hours charged by the lawyers and law clerks for the various steps set out in the defendant’s Bill of Costs.
[5] The fixing of costs is a discretionary decision under Section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These factors include the principal of indemnity for the successful party, the expectations of the unsuccessful party and the complexity of the issues. Overall, this Court is required to consider what is “fair and reasonable” in fixing costs, and it is to do so with a view to balance and compensation of the successful party with the goal of fostering access to justice: Boucher v. Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).
[6] In reviewing the defendant’s Bill of Costs, I see little which the plaintiff could characterize as being “unreasonable” in the circumstances. The only items which appear to be somewhat excessive are as follows:
(a) The defendant claims 35 hours for “attending motion scheduling court, conducting legal research, motion record for summary judgment, factum, preparation of book of authorities”. There is no detailed breakdown of those 35 hours to assess the reasonableness of each of those interim steps.
(b) I agree with the plaintiff that it ought not to have taken approximately six hours to prepare, serve and file the defendant’s Costs Outline and Bill of Costs.
[7] In the circumstances of this case, I find that the plaintiff could have reasonably expected to be liable for a costs award in the range of $10,000.00 - $15,000.00. I therefore fix the costs of this motion on a partial indemnity basis in the all-inclusive sum of $13,000.00 payable by the plaintiff to the defendant within 30 days.
Diamond J.
Released: June 29, 2015
CITATION: Suhaag Jewellers Ltd. v. The Alarm Factory Inc., 2015 ONSC 4172
COURT FILE NO.: CV-13-476520
DATE: 20150629
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SUHAAG JEWELLERS LTD.
Plaintiff
– and –
THE ALARM FACTORY INC. carrying on business as AFC ADVANCE INTEGRATION
Defendant
COSTS ENDORSEMENT
Diamond J.
Released: June 29, 2015