Court File and Parties
CITATION: Karabas v. Economical Mutual Insurance, 2015 ONSC 4654
COURT FILE NO.: 06-24706
DATE: 2015-07-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MEHMET KARABAS
S. Oostdyk, for the Plaintiff
Plaintiff
(Moving Party)
- and -
ECONOMICAL MUTUAL INSURANCE COMPANIES
D. Inkpen, for the Defendant
Defendant
(Respondent on Motion)
HEARD: January 29, 2015
The Honourable Justice C. D. Braid
RULING ON COSTS
Introduction
[1] On the third trial date set in this action, the court allowed the plaintiff’s request for an adjournment and struck the matter from the trial list. Almost a year after it had been struck, the plaintiff brought a motion for an order to restore the action to the trial list. The motion was argued almost ten years after the cause of action arose. I dismissed the plaintiff’s motion to restore the action to the trial list.
[2] The court found that the overall delay since the commencement of the action was inordinate and the plaintiff did not provide a reasonable explanation or excuse for it. The plaintiff deliberately delayed the action because of a stated wish to have it tried with another action or actions, but failed to act diligently to advance the other action(s) or to seek to have them brought together. The defendant could not locate two witnesses and therefore established actual prejudice.
[3] In its written material responding to the plaintiff’s motion, the defendant asked that the action be dismissed for delay but did not bring a motion seeking that relief. The court therefore declined to make an order for dismissal of the action.
[4] I advised the parties that they could make written submissions on costs if they were unable to agree. I have now received such submissions from both parties.
Analysis
[5] The court found in favour of the defendant on the motion and this matter has not been restored to the trial list.
[6] The defendant seeks full indemnity costs which it states are $7,122.96 inclusive of taxes and disbursements. These costs encompass 33.5 hours by two lawyers. The vast majority of that time by counsel with two years’ experience who charges $165.00 per hour.
[7] This was a fairly straightforward and uncomplicated motion. In determining quantum, the court is to consider the factors set out in Rule 57.01 of the Rules of Civil Procedure, as well as s. 131 of the Courts of Justice Act. I have considered those factors.
[8] I have also considered the principles in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.). In that case, the Ontario Court of Appeal stated that the fixing of costs involves more than merely a calculation using the hours docketed and the cost grid:
In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.
[9] There is no evidence before me that either party filed any offer to settle pursuant to the rules that would attract cost consequences.
[10] I have reviewed the Bill of Costs submitted by the defendant. Unfortunately, there is a calculation error in the partial indemnity fees portion of the Bill of Costs. Having corrected the error, I have determined that partial indemnity costs are $3,576.45. The number of hours spent in preparation for this motion is reasonable. It is notable that the defendant counsel was the only party who prepared and filed a factum on the motion, which is required on a long motion pursuant to the rules.
[11] The defendant argues that it is entitled to costs at the full indemnity rate because of the nature of the claims raised by the plaintiff in the Statement of Claim. The Court of Appeal has stated that elevated costs are only available in specific circumstances:
This court, following the principle established by the Supreme Court, has repeatedly said that elevated costs are warranted in only two circumstances. The first involves the operation of an offer to settle under rule 49.10, where substantial indemnity costs are explicitly authorized. The second is where the losing party has engaged in behavior worthy of sanction.
Davies v. Clarington (Municipality) 2009 ONCA 722, [2009] O.J. No. 4236 (O.C.A.) at para. 28.
[12] As noted above, the defendant did not bring a motion to dismiss the action for delay. Although I have refused to return this action to the trial list, the action has not been dismissed. I therefore decline to order full indemnity costs to sanction the plaintiff for allegations set out in the Statement of Claim.
Conclusion
[13] In all of the circumstances, I find that it is fair and reasonable to assess costs on a partial indemnity basis. The plaintiff shall pay costs of the motion to the defendant in the amount of $3,576.45, inclusive of taxes and disbursements. The costs are payable forthwith.
Braid J.
Released: July 20, 2015
CITATION: Karabas v. Economical Mutual Insurance, 2015 ONSC 4654
COURT FILE NO.: 06-24706
DATE: 2015-07-20
ONTARIO
SUPERIOR COURT OF JUSTICE
Braid J.
B E T W E E N:
Mehmet Karabas
Plaintiff
(Moving Party)
- and –
Economical Mutual Insurance Companies
Defendant
(Respondent on Motion)
RULING ON COSTS
Braid, J.
Released: July 20, 2015