COSTS ENDORSEMENT

COURT FILE NO.: CV-12-464474

DATE: 20150810

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MAHADEI JUGMOHAN, Plaintiff

AND

GORDON ROYLE, FRANK NACCARATO and IVAN BASCOM, Defendants

BEFORE: Mr. Justice Stephen Firestone

COUNSEL: Robert Besunder and Jeffrey Raphael, for the Plaintiff

Nicholas Mester, for the Defendants, Gordon Royle and Frank Naccarato

Peter Yoo, for the Defendant Ivan Bascom

HEARD: In Writing

COSTS ENDORSEMENT

[1] The trial of this motor vehicle action proceeded before me with the jury. The trial commenced on February 2, 2015, and the jury delivered its verdict on February 18, 2015. At the time of the subject collision, the plaintiff, Mahadei Jugmohan (“Jugmohan”), was a passenger in the vehicle being operated by the defendant, Ivan Bascom (“Bascom”). As a result, liability was an issue between the defendants only.

[2] In their verdict, the jury found that it was practicable to apportion negligence between the defendant drivers. They apportioned 40% to Gordon Royle (“Royle”) and 60% to Bascom. The jury was asked to assess general damages, future housekeeping and home maintenance as well as future cost of care. The jury awarded nil dollars for each of these heads of damages.

[3] In accordance with the jury’s verdict, the action was dismissed with costs and the record was endorsed accordingly. The parties were to deliver costs submissions if the issue of costs could not be resolved between them. I have received and considered those submissions.

[4] On March 17, 2015, I released my threshold decision. I found that the plaintiff had failed to discharge the onus of proof that her case fell within the exception to the statutory immunity (threshold) provided for in s. 267.5(5) of the Insurance Act, R.S.O.1990 c I.8 and the applicable regulations.

Position of the defendants Naccarato and Royle

[5] Naccarato and Royle were the successful parties on the issues of liability and damages in this action. Liability was an issue in the cross-claims only, as the plaintiff was a seat-belted passenger in Bascom’s vehicle. As a result, some liability or responsibility on the part of Royle in the main action was conceded at trial. Naccarato and Royle point out that their co-defendant, Bascom, denied liability and did not question any witnesses or call any evidence on the issue of damages. The jury found Bascom to be 60% at fault and Royle to be 40%.

[6] These defendants were wholly successful on the issue of damages. The jury awarded nil dollars for damages and the main action was dismissed. They therefore are entitled to their costs.

[7] Naccarato and Royle submit that the plaintiff should be liable for all of her costs. These defendants argue that while they were successful in obtaining a 60/40 split in liability in their favour, the plaintiff recovered no damages at all. With respect to the issue of costs, the claims for contribution and indemnity that formed the basis of the cross-claims between the defendants are moot.

[8] Regarding the quantum of costs, the defendants argue that the court should look to the factors enumerated in rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”). They submit that costs should be awarded on a partial indemnity basis, given that no party’s conduct warrants an elevated cost award. They further submit that the hours and rates set forth in their bill of costs are reasonable. The action was five years old and required a 10 day jury trial. They seek partial indemnity fees in the sum of $54,995.46, plus disbursements in the sum of $23,314.07 for a total of $78,309.53 (all amounts are inclusive of HST).

[9] The plaintiff, these defendants argue, could reasonably have expected to pay costs to both defendants. They denied the plaintiff suffered any damages from the outset, and maintained that position throughout the litigation. The plaintiff faced the real possibility that she would not recover any damages and that her action would be dismissed.

[10] The plaintiff claimed $500,000, and recovered nil dollars. From the plaintiff’s perspective, the action proceeded on the issue of damages only, given that these defendants conceded some liability at the outset of trial. The issue to be determined between defendants was how much they would each pay.

[11] This was a straightforward personal injury action arising from a motor vehicle collision. The trial took 10 days. Delay was not a significant issue, the defendants submit, given that the matter was concluded within a relatively short period of time. Any delays, they submit, were attributable to the plaintiff. They point to the fact that she decided to call her family doctor as an expert witness at the last-minute and attempted to reinstate a jury question on past housekeeping after her case was closed.

[12] Finally, Naccarato and Royle argue that their failure to admit facts that should have been admitted was rectified at the outset of trial by an agreement on a joint brief of documents. This did not result in any trial delay as the plaintiff did not call any non-party lay witnesses.

Position of the Defendant Bascom

[13] The defendant Bascom seeks fees on a substantial indemnity basis. In particular, he seeks fees in the sum of $50,932.35 and disbursements in the sum of $2,637.52 for a total of $53,569.90 (all of these amounts include HST). On a partial indemnity basis, Bascom’s fees are $37,398.91. With disbursements, this totals $40,036.40.

[14] Bascom highlights that he served the plaintiff with an offer to settle. The offer, dated February 18, 2011, was not accepted. It consisted of four parts. The first part of the offer provided for the dismissal of the action against this defendant on a without costs basis. The second part of the offer provided that, upon the commencement of examinations for discovery, Bascom would consent to an order dismissing the action with costs in the sum of $5,000. The third part provided that, upon the commencement of either a pre-trial conference or mediation, Bascom would consent to an order dismissing the action with costs in the sum of $8,000. This amount was exclusive of taxes and disbursements. Alternatively, Bascom offered that costs be assessed on a partial indemnity scale only. The fourth and final part stated that all offers to settle would be withdrawn five minutes after the first witness was called to testify at trial.

[15] Bascom refers to the court’s discretion to award costs under s. 131 of the Courts of Justice Act, R.S.O.1990, c. C.43. Given the plaintiff was unsuccessful at trial, this defendant submits that he is entitled to his costs within 30 days, unless justice dictates otherwise.

[16] Bascom further refers to the factors under rule 57.01. He highlights that the plaintiff claimed damages of $500,000 plus interest and costs. As a result of the defendants’ successful defence at trial, the plaintiff recovered nil damages. Bascom submits that the plaintiff’s total failure at trial supports his position that he is entitled to a sizable costs award. He relies on Rule 49 in seeking substantial indemnity costs from the date of his offer to the judgment date.

[17] Bascom submits that that the factors in issue, as detailed above, support a finding that he should be entitled to costs on substantial indemnity basis, at least from the date of his February 2000 offer and to date.

Position of the Plaintiff Jugmohan

[18] The plaintiff relies on rules 57.01(1) and 57.01(2) of the Rules. She argues that the conduct of the defendants was such that this is an appropriate case for this Honourable Court to protect the plaintiff from an adverse cost award. In the alternative, she argues that the court should significantly reduce any costs payable by her to the defendants. The plaintiff submits that even if costs are found payable by the plaintiff, the costs being sought by the defendants collectively are excessive and beyond the reasonable expectations of the parties.

[19] In support of her position, the plaintiff argues that the defendants’ the conduct unnecessarily prolonged and complicated the action. The plaintiff states that the parties had agreed to meet at defence counsel’s offices to prepare a joint document following the pretrial settlement conference. When the plaintiff’s counsel attended the pre-scheduled meeting, it could not proceed. Defense counsel had forgotten about the meeting.

[20] The plaintiff’s counsel served a request to admit on the defendants. Bascom responded, admitting certain facts and the verifying the authenticity of documents. However, the response from the defendants Royle and Naccarato included a blanket denial of all facts as well as the authenticity of all documents.

[21] Royle and Naccarato only admitted the facts and authenticity of documents on the eve of trial. By that time, the plaintiff submits, her counsel had acted in response to the denial of the authenticity of documents. Her counsel had spent time and money summoning witnesses and paying the authors of the contested documents. The defendants’ refusal to make admissions until the eve of trial caused the parties to waste time and money. They had to prepare the joint document brief and have it copied on a rush basis.

[22] Further delay in the proceedings also occurred when Naccarato and Royle served a supplementary expert medical report for the first time in the middle of trial. In addition, the plaintiff was forced to bear the additional costs of asking her medical experts to attend court on multiple occasions. In order to accommodate Royle’s schedule, the court allowed him to testify in the middle of the plaintiff’s case. Notwithstanding his knowledge of the trial date, Royle had booked a business trip for the second week of trial. This was precisely when the defendants were supposed to present their case.

[23] In support of her position that the defendant’s costs are excessive and beyond the reasonable expectations of the parties, the plaintiff highlights that Royle and Naccarato seek an award of costs in the sum of $78,309.53, $23,314.07 of which is for disbursements. They seek costs on a partial indemnity basis. Bascom seeks costs on a substantial indemnity basis in the sum of $53,569.90, including $2,637.52 for disbursements.

[24] The defendants argue that the costs they request are within the reasonable expectations of the parties. In support of this proposition, they submit that the plaintiff sought $500,000 in damages in her Statement of Claim (“Claim”). The plaintiff argues that the amount she sought in her initial pleading is irrelevant to determining the expectations of the parties as to costs, and should not be used as a gauge.

[25] The plaintiff’s prayer for relief in her Claim merely uses an upper limit placeholder. In the Claim, the plaintiff specifically pleads that “to date the full extent of her damages, injuries, disabilities and future treatment have not been fully determined.” It was clear following completion of examinations for discovery and documentary disclosure that the plaintiff was not realistically expecting her case to assess anywhere near $500,000.

[26] The plaintiff’s offer to settle is evidence of her expectation regarding the assessment of damages. The offer was in the sum of $50,000 all-inclusive, which included partial indemnity costs in the sum of $5,170.44 and disbursements in the sum of $14,325.47, (both inclusive of HST). As a result, the plaintiff submits it was in the reasonable expectation of the parties that the defendants’ costs would not have exceeded the total amount the plaintiff was seeking.

[27] The fact that the plaintiff was seeking only $5,170.44 in partial indemnity costs shortly prior to the commencement of trial should also, she argues, put the excessiveness of the costs being claimed by the defendants in perspective. The plaintiff admits that additional costs were incurred once this action proceeded to trial. However, these additional costs should not amount to 10 times the costs that the plaintiff was seeking just prior to the commencement of trial.

Defendants’ Reply

[28] The defendants, Naccarato and Royle, reply to the plaintiff’s submissions. The defendant Bascom relies on his co-defendants reply submissions.

[29] Naccarato and Royle submit that, absent special circumstances, the successful party is entitled to costs. There are no special circumstances in this case.

[30] Naccarato and Royle submit that their failure to draft a joint book of documents did not prolong or delay the trial. Counsel candidly admits that, through advertence, the meeting was not in his diary. Counsel for Bascom did not attend the meeting either. However, he submits that the plaintiff’s counsel brought his entire file. As a result, as each document was reviewed, Bascom’s counsel advised which of them he was agreeable to and which ones would need to be proved.

[31] Following the meeting, the plaintiff created no draft joint book of documents and made no mention of the joint document brief until the eve of trial. The parties agreed to an index during the trial management conference. As a result, the defendant submits that no misconduct by any party led to a delay in the preparation of the joint document brief.

[32] Counsel for Naccarato and Royle acknowledges that the authenticity of various documents was admitted on the eve trial. These admissions were not made before this time because counsel was at trial on another matter. For this reason, a blanket denial was given regarding the authenticity of the documents to avoid the deemed admissions issue. Most importantly, issues regarding the documents were resolved in a joint document brief that was agreed upon prior to trial. As a result of the agreement, the plaintiff did not call any non-party lay witnesses. Therefore, there was no delay in the conduct of the trial due to these defendants’ failure to admit the authenticity of documents. The required time to prepare the joint document brief remained the same.

[33] Naccarato and Royle submit that the plaintiff’s reliance on their request to admit is misplaced. The plaintiff did not deliver her request to admit until January 7, 2015. Therefore, a response was not due until January 27, 2015. Presumably, they submit, the plaintiff began preparing for trial, including summoning witnesses, well in advance of the deadline for the response to the plaintiff’s request to admit. There is no evidence that the plaintiff incurred unnecessary costs due to these defendants’ failure to respond to her request to admit. As a result, no cost consequences should flow from their failure to admit the authenticity of the documents requested.

[34] The defendants argue that any delay occasioned by the delivery of a supplementary report during trial was minimal. The court allowed the plaintiff to conduct a further examination-in-chief of the plaintiff’s expert in response to the defendants’ supplemental expert report. Given that there was minimal delay resulting from her late delivery of the supplemental report, the plaintiff submits that no adverse consequences should follow.

[35] Regarding the plaintiff’s submission that she was forced to recall two of her experts because Royle had scheduled a business trip that conflicted with part of the trial, she highlights that Royle’s testimony was less than an hour in total and that one of the plaintiff’s experts would have to come back to court the following day even if Royle had not testified out of order.

[36] Naccarato and Royle should not, they submit, be faulted for Royle’s business trip. Calling him out of order was the least costly remedy available to the court. It was certainly less costly than an adjournment of the trial, and Royle had a right to testify. In any event, Royle testified out of order due to a change in the original trial schedule that resulted from the plaintiff’s last-minute decision to tender her family doctor as an expert witness. The disruption to the original schedule was also attributed to an issue regarding the plaintiff’s production of her family doctor’s complete chart.

[37] The defendants submit that the costs they seek are not excessive or beyond the reasonable expectation of the parties. They highlight that the plaintiff has not submitted her own bill of costs. They submit that the court may consider the losing party’s failure to submit a bill of costs in determining the reasonable expectations of the parties. They argue that the court has no idea what amount the plaintiff would have sought in costs had she been successful.

[38] The defendants reiterate that the costs they seek are both in fact reasonable and within the reasonable expectation parties. The action was commenced in 2000 and did not proceed to trial until 2015. Further, the trial lasted for 10 days and was heard over a two and a half week time period. The total partial indemnity costs of these defendants combined is slightly over $110,000.

[39] The defendants submit that the only question is whether the plaintiff could reasonably expect to be liable for two sets of costs. In response, they highlight that the plaintiff sued two sets of defendants. Their position, not only in their pleadings, but also at the pre-trial and in mediation, made her aware of the risk that she could be awarded nil damages. They state that the fact that the plaintiff was awarded nil dollars shows just how reasonable that possibility was. As a result, she cannot complain about paying two sets of costs.

[40] The defendants highlight rule 57.01(1)(a), which expressly allows a trial judge to consider the amount claimed and the amount recovered. If the plaintiff had no real expectation of receiving $500,000 in damages, the Claim could have easily been amended prior to trial to reflect her realistic expectations.

[41] The plaintiff takes the position that she reasonably expected the defendants’ costs to fall within her all-inclusive offer of $50,000. This, the defendants submit, misses the point. Firstly, she failed to recover any damages. This shows, in their submission, that it was reasonable for the defendants to have rejected the plaintiff’s offer. Notwithstanding the plaintiff’s offer, the defendants argue that the court has no idea what process to follow for assessing costs and disbursements given her failure to file a bill of costs.

[42] Finally, in reply, the defendants argue that the plaintiff would have been in a much better position had she accepted the defendants’ offer for a dismissal of the action without costs. In rejecting the defendants’ offer, she elected to proceed to trial with the hope of obtaining judgment. This did not occur, and she was wholly unsuccessful.

Analysis

[43] Section 131(1) of the Courts of Justice Act provides as follows:

Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid.

[44] Rule 57.01 of the Rules identifies the factors a court may consider when exercising its discretion to award costs:

(1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs.

[45] Rule 49.10 limits the court’s discretion on costs in certain circumstances when there has been a qualifying offer to settle:

(1) Where an offer to settle,

(a) is made by a plaintiff at least seven days before the commencement of the hearing;

(b) is not withdrawn and does not expire before the commencement of the hearing; and

(c) is not accepted by the defendant,

and the plaintiff obtains a judgment as favourable as or more favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer to settle was served and substantial indemnity costs from that date, unless the court orders otherwise.

(2) Where an offer to settle,

(a) is made by a defendant at least seven days before the commencement of the hearing;

(b) is not withdrawn and does not expire before the commencement of the hearing; and

(c) is not accepted by the plaintiff,

and the plaintiff obtains a judgment as favourable as or less favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer was served and the defendant is entitled to partial indemnity costs from that date, unless the court orders otherwise.

[46] Rule 49.13 provides as follows:

Despite rules 49.03, 49.10 and 49.11, the court, in exercising its discretion with respect to costs, may take into account any offer to settle made in writing, the date the offer was made and the terms of the offer.

[47] In Agius v. Home Depot Holdings Inc., 2011 ONSC 5272, the court set forth the general principles to be applied in fixing costs, at paras. 10-12:

Cumming J. in DUCA Financial Services Credit Union Ltd. v. Bozzo, 2010 ONSC 4601 at para. 5, described the “normative approach” to an application for costs:

Costs are in the discretion of the Court: s. 131, Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 57.01 of the Rules of Civil Procedure. In Ontario, the normative approach is first, that costs follow the event, premised upon a two-way, or loser pay, costs approach; second, that costs are awarded on a partial indemnity basis; and third, that costs are payable forthwith, i.e. within 30 days. Discretion can, of course, be exercised in exceptional circumstances to depart from any one or more of these norms.

Fixing of costs is not merely a mechanical exercise in reviewing the receiving party’s Cost Outline. In Andersen v. St. Jude Medical Inc. (2006), 2006 85158 (ON SCDC), 264 D.L.R. (4th) 557, the Divisional Court set out several principles to be considered in making an award of costs:

1. The discretion of the court must be exercised in light of the specific facts and circumstances of the case in relation to the factors set out in rule 57.01(1): Boucher, Moon, and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC.

2. A consideration of experience, rates charged and hours spent is appropriate, but is subject to the overriding principle of reasonableness as applied to the factual matrix of the particular case: Boucher. The quantum should reflect an amount the court considers to be fair and reasonable rather than any exact measure of the actual costs to the successful litigant.

3. The reasonable expectation of the unsuccessful party is one of the factors to be considered in determining an amount that is fair and reasonable.

4. The court should seek to avoid inconsistency with comparable awards in other cases.

5. The court should seek to balance the indemnity principle with the fundamental objective of access to justice.

The Court of Appeal has identified the overriding principle to be that the amount of costs awarded be reasonable in the circumstances.

The application of rule 49.10

[48] Bascom expressly relies on rule 49.10 to justify receipt of substantial indemnity costs from the date of his offer. It is therefore important to address the applicability of the rule to this case, where the jury awarded no recovery to the plaintiff.

[49] Rule 49.10(1) (“Plaintiff’s Offer”) and rule 49.10(2) (“Defendant’s Offer”) take effect when “the plaintiff obtains a judgment.” Therefore, the specific cost consequences under rule 49.10 have no application when the plaintiff’s claim is dismissed in its entirety with no award of damages, as was the case here: Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66, at para. 38.

The Court of Appeal explained the rationale for rule 49.10’s limited scope in S & A Strasser Ltd. v. Richmond Hill (Town) (1990), 1990 6856 (ON CA), 1 O.R. (3d) 243 (C.A.), at p. 245:

At first glance it seems an anomaly that the plaintiff should be awarded solicitor-and-client costs following the date of an offer, while the defendant only receives party-and-party costs. The answer is found in appreciating that this rule assumes that the plaintiff has recovered a judgment of some value. Without the rule, that plaintiff would normally recover party-and-party costs. The rule gives that plaintiff a bonus for an offer lower than the recovery by elevating costs to the solicitor-and-client level following the offer. The bonus to a defendant who makes an offer higher than the recovery is that the defendant pays no costs following the offer and, in addition, recovers party-and-party costs for that period of time. That rationale does not fit a case where the plaintiff is totally unsuccessful because, without the rule, the defendant is normally entitled to party-and-party costs. The words in the rule “and the plaintiff obtains a judgment as favourable” make it clear that the rule has no application where the plaintiff fails to recover any judgment.

[50] Accordingly, rule 49.10 does not automatically entitle any of the defendants in this case to costs. In exercising my discretion with respect to costs under rule 49.13, I may take into account “any offer to settle made in writing, the date the offer was made in the terms of the offer”.

The application of rule 57.01

[51] In addition to the result achieved and offers to settle, I may consider the factors enumerated in rule 57.01(1) when exercising my discretion under s. 131 of the Courts of Justice Act.

[52] Costs are in the absolute discretion of the court. A successful litigant has no right to costs, but only a reasonable expectation of costs. The plaintiff’s position is that the defendants should be denied their costs, or in the alternative, that any costs payable by the plaintiff should be significantly reduced.

[53] In Yelda v. Vu, 2013 ONSC 5903 (leave to appeal denied, 2014 ONCA 353) at para. 11, Arrell J.A. confirmed the long-standing principle that a successful party is entitled to costs except for good reason.

[54] Absent special circumstances, a successful party is entitled the costs: Bell Canada v. Olympia & York Developments Ltd. (1994), 1994 239 (ON CA), 17 O.R. (3d) 135 (C.A.) In this case the defendants were successful and are entitled to their costs. However, the amounts requested are excessive. In addition, there is no basis to award such costs on substantial indemnity scale.

[55] The defendants were well aware that the plaintiff was seeking far less than the damages she originally claimed. Her offer to settle in the sum of $50,000 evidenced this.

[56] This action did not involve inherently complex issues. In their costs submissions, Naccarato and Royle specifically state that “[T]he main action proceeded on the issue of damages only as these defendants conceded some liability at the outset of trial. The matter involved a straightforward personal injury action arising from a motor vehicle accident that was heard in 10 court days.” Liability for the accident was an issue between the defendants only given the plaintiff was a passenger. The apportionment of liability did not involve the plaintiff. Had the defendants been able to agree on the appropriate liability split, the trial would have taken less time.

[57] In my view, after considering this matter in its entirety, it cannot be said that there has been “any step in the proceeding” by the defendants that was “improper, vexatious or unnecessary” sufficient to depart from the general principle that a successful party(s) is entitled to its costs.

[58] The defendants and their counsel took a consistent position throughout the litigation. They maintained at all times that they would not offer anything toward resolution other than a dismissal of the action without costs. The plaintiff’s only recourse was not to pursue a trial. She had choices. The plaintiff was well aware that the defendants would not be changing their consistently-held position. It was open to the plaintiff to either agree to a dismissal of the action without costs or proceed through trial. She had full knowledge that if it did not go well, she could potentially be responsible for paying two sets of costs.

Quantum of Costs

[59] Applied to the evidence in this case, the Rules and applicable case law provide insufficient grounds for departing from the principle that successful litigants are entitled to their costs. However, there is certainly no conduct on the part of the plaintiff which would justify that such costs be paid on an elevated level. Based on the factual matrix of this case, costs on a substantial indemnity basis are certainly not warranted.

[60] Section 131 of the Courts of Justice Act affords the court discretion to determine the amount of costs to be paid.

[61] The overall objective of fixing costs is to arrive at an amount that is fair and reasonable., rather than to reflect the amount of actual costs incurred by the successful litigant.

[62] In Haufler v. Hotel Riu Palace Cabo San Lucas, 2014 ONSC 2686 at para. 11, Quigley J. confirmed the principle, increasingly recognized by the courts, that an hourly approach to determining costs awards is a problematic element of litigation.

[63] This concern was aptly expressed in Independent Multi-Funds Inc. v. Bank of Nova Scotia, 2004 18796 at para. 23:

As between a lawyer and a client, this approach may be acceptable; certainly it is now almost universal, but the client, unlike the opposite party, has the option of seeking a less expensive lawyer. Combined with our system of requiring the loser to pay costs to the winner, measured by what the winner has spent, this approach is proving an enormous obstacle to access to justice in our courts.

[64] I do not intend to engage in the purely mathematical exercise of reviewing the time dockets provided. This approach is in accordance with the principles I have outlined. The court’s role is to fix a reasonable amount to be paid by the unsuccessful party (in this case, the plaintiff). It is not the court’s role to conduct an exact mathematical calculation of the successful litigants’ actual costs.

[65] The rate charged per hour is an appropriate consideration. However, it is subject to the overriding principle of reasonableness as applied to the factual matrix of a particular case.

[66] This was a straightforward case of moderate complexity. Liability was an issue between the defendants only. The plaintiff should not be responsible for any additional time related to this dispute because the co-defendants were unable to resolve the issue prior to trial. The procedural issues that arose during the course of the trial were the shared responsibility of the parties. The parties contributed equally to the additional trial time required.

[67] I have reviewed the defendants’ outlines of costs. A review of those outlines indicates that there is duplication of effort and excessive hours.

[68] I have considered the appropriate legal principles as they apply to the facts of this case as well as the written submissions of counsel.

[69] Naccarato and Royle’s costs are fixed in the sum of $49,900 inclusive of fees, disbursements, and HST. Bascom’s costs are fixed in the sum of $20,000 inclusive of fees, disbursements and HST. These costs are payable by the plaintiff to the respective defendants within 120 days.

Firestone J.

Date: August 10, 2015