COSTS ENDORSEMENT
COURT FILE NO.: CV-13-1045
DATE: July 20, 2015
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: John Roy Henderson, Applicant
AND
Muriel Evelyn Wright, Respondent
BEFORE: The Honourable Mr. Justice Martin James
COUNSEL: Clinton H. Culic, Counsel for the Applicant
Robert D. Hammond, Counsel for the Respondent
HEARD: Written Submissions
COSTS ENDORSEMENT
James J.
[1] The plaintiff sued the defendant for recognition that he had an interest in a property owned by the defendant. The plaintiff and his wife made monthly payments to the defendant for about 20 years and the plaintiff said that he acquired a compensable interest in the property in the circumstances under which the payments were made.
[2] The plaintiff’s claims were dismissed. This endorsement deals with the defendant’s claim for payment of legal costs.
[3] The defendant claims total costs of $78,546.64. Counsel for the defendant says the defendant is entitled to recover her costs on a substantial indemnity basis because of the operation of a written offer to settle.
[4] The plaintiff acknowledges that the defendant is entitled to some amount for costs but says the amount claimed by the defendant is much too high. The plaintiff suggests that costs of $38,000, all inclusive, would be appropriate.
[5] Breaking down the competing costs claims, the defendant claims $38,226 for initial preparation, $12,975 for trial preparation and $16,050 for attendance at trial for fees of $67,251, before considering disbursements and HST. The defendant claims disbursements of $2,259.30. The plaintiff does not dispute the defendant’s disbursements claim. The plaintiff says a more appropriate amount for fees, before disbursements and HST, is $33,559.48. It appears therefore that the amount of fees in dispute is approximately $34,000.
[6] In addition to the factors listed in the rules of court to be considered when determining costs, I have taken the following factors into account:
The defendant made two offers to settle. The second offer to settle was open for acceptance until trial. The defendant’s result at trial was more favourable than the offer and therefore the defendant is entitled to enhanced costs recovery.
The defendant does not clearly differentiate her partial indemnity costs from her substantial indemnity costs subsequent to the date of the second offer. Ideally, the amount claimed on the two scales ought to be itemized.
It was unrealistic for the defendant’s counsel to expect that the issues could be resolved by way of the application procedure. There were significant disputed facts that required a trial.
The hourly rate claimed by the defendant’s counsel is reasonable.
[7] In the circumstances, I have determined that the defendant is entitled to recover costs from the plaintiff of $52,000 for fees plus HST of $6,760 and disbursements of $2,259.30 plus applicable HST. I note that in claiming HST of $293.71, it would appear that the defendant has included an HST charge for court filing fees which are HST exempt and this may make a minor difference in the amount of HST payable on the disbursements.
Mr. Justice Martin James
DATE RELEASED: July 20, 2015
COURT FILE NO.: CV-13-1045
DATE: July 20, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: John Roy Henderson, Applicant
AND
Muriel Evelyn Wright, Respondent
BEFORE: The Honourable Mr. Justice Martin James
COUNSEL: Clinton H. Culic, Counsel for the Applicant
Robert D. Hammond, Counsel for the Respondent
COSTS ENDORSEMENT
James, J.
Released: July 20, 2015