SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-12-469329

DATE: 20150728

RE: HARVEY KALLES REAL ESTATE LTD.

Plaintiff

-AND-

ARTADOKHT HAJ-SEYED-ABOLGHASEM-TEHRANI,

also known as ARTADOKHT TEHRANI

Defendant

BEFORE: M. D. Faieta, J.

COUNSEL: Robert B. Macdonald, for the Plaintiff

Rolf Piehler, for the Defendant

HEARD: June 15, 16, 17, 2015

COSTS DECISION

INTRODUCTION

[1] This action for $68,506.25 was dismissed following a three-day trial. The defendants seek their costs on a substantial indemnity basis in the amount of $27,344.98.

[2] First, substantial indemnity costs are only awarded when an offer to settle is made under Rule 49.10 or where a party has engaged in reprehensible conduct. Neither situation exists in this case. Accordingly, the defendants are entitled to their costs on a partial indemnity basis.

[3] Second, the plaintiff submits that a partial indemnity rate that represents 67 percent of counsel’s actual rate is high. I agree. As such partial indemnity rates are typically 60 percent of substantially indemnity rates. Accordingly, I reduce the counsel’s rate on a partial indemnity basis to $195.00 per hour.

[4] Third, I agree that costs should not be awarded for the pre-trial as they were already fixed and awarded to the plaintiff. However, I will not undertake a line by line analysis of the bill of costs as suggested by the plaintiff. As the Ontario Court of Appeal in Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66, has stated, the amount of a costs award should reflect what an unsuccessful party could reasonably expect to pay rather than the exact amount of costs actually incurred by the successful party.

[5] Taking into account the considerations under Rule 57.01, including the offer to settle that was refused by the plaintiff, I award the defendants the sum of $17,000 in costs, inclusive of taxes and disbursements. In my view, this award of costs addresses the objectives of fairness, reasonableness and proportionality. It is an amount that the unsuccessful party could reasonably be expected to pay. Had the plaintiff provided the Court with its bill of costs I expect that it would have supported this conclusion.

Mr. Justice M. D. Faieta

Date: July 28, 2015