COSTS ENDORSEMENT

COURT FILE NO.: 08-CV-348736 PD3

DATE: 20150825

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DANIEL TRIMMELITI, Plaintiff

AND:

BLUE MOUNTAIN RESORTS LIMITED, Defendant

BEFORE: Sean F. Dunphy

COUNSEL: David Hwang, for the Plaintiff

John A. Olah and Robert A. Betts, for the Defendant

HEARD: April 8, 2015

[1] The defendant moved for summary judgment to dismiss the plaintiff’s claim. I delivered my detailed reasons allowing the motion (2015 ONSC 2301) and invited the parties to make written submissions regarding costs. I have reviewed the written submissions and carefully considered the criteria set forth in Rule 57.01 of the Rules of Civil Procedure.

[2] The moving party defendant was successful in its motion for summary judgment. The claim was entirely disposed of. Having regard to the nature of this case, s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and the factors set forth in Rule 57.01 of the Rules of Civil Procedure, I would normally be inclined to award costs to the successful party on the motion on a partial indemnity basis. Is there anything to change that view present here?

[3] The defendant moving party has provided me with evidence of offers to settle but it is not seeking a higher level of costs than partial indemnity. There is thus no request for a higher award. The plaintiff, on the other hand, submits that no costs ought to be awarded by reason of his impecuniosity.

[4] I shall deal with the plaintiff’s impecuniosity submission in the context of my Rule 57.01 analysis.

[5] This action considered the enforceability of the forms of waiver commonly utilized by the defendant in its business as well as the duties of care owed by a ski hill operator to users of the facility such as the defendant. These are both very important issues to the defendant and its business. As a ski hill operator, the defendant makes its facilities available to large numbers of people engaged in an enjoyable but unfortunately somewhat dangerous winter sport. Injuries happen. Allocating the risk of such incidents as between the members of the public who choose to ski and the ski hill operator is an issue of high importance to the defendant. I cannot fault them for treating each case as important.

[6] Bearing the importance of the issue in mind as well as the success they have achieved, the actual costs the defendant is seeking are in fact quite modest. The case has been dismissed. These costs were incurred over a number of years in defending the action and then bringing the summary judgment motion. Mediation was unsuccessful. They handled the matter internally for a period of time and have not sought to recover any part of the cost of their own corporate counsel. They ultimately referred it to an outside firm at negotiated rates which were very modest given the seniority and experience of the counsel they retained. Doubtless their purchasing power helped them strike a bargain and achieve advantageous rates.

[7] The actual rates charged by counsel to his or her client are certainly a factor, but not a decisive one. In assessing partial indemnity costs, for example, it is highly unlikely that a court would allow for fees paid to external counsel at a rate higher than actual cost, at least not without special circumstances (not alleged here, so I needn’t attempt to list them). By the same token, partial indemnity costs are not a fixed ratio of actual cost either. Allowing nothing for in-house counsel, the defendant’s actual costs were $107,000 inclusive of fees, $9,545.95 of disbursements and HST.

[8] Partial indemnity fees and disbursements totaling $72,423.67 were substantiated through a costs outline. The time claimed appears reasonable and justified to me, as do the rates. The defendant proposed to round that figure down to $70,000 in total costs. Recognizing the straightened financial circumstances of the plaintiff, they have also offered to negotiate reasonable payment terms.

[9] The plaintiff for his part acknowledges that he is now a lawyer, but pleads impecuniosity. He is not presently employed and is of limited means. His employment insurance has run out. To support these claims he provided me with a copy of his tax return and his bank statement. The former confirms his low income, the latter confirms somewhat significant lines of credit, but no cash balances. The defendant does not challenge this information and offers to work out a payment schedule.

[10] While the plaintiff certainly appears to have low income, I have no information on his assets or net worth and cannot assume that his unemployed position today translates into no capacity to pay a costs award. Further, he is still a lawyer and has some ability to resume his profession and generate income in that fashion.

[11] I am disinclined to over-weight the present circumstances of the plaintiff. The submissions before me indicate that the plaintiff rejected a settlement offer in mediation that would have paid him a small amount and avoided a trial. Instead he made a counter-offer where he attempted to use the prospect of the defendants incurring further fees (he was then self-represented) as a lever in his favour. He was not successful. Parties who seek to use the asymmetry of costs being incurred by one party to their advantage in order to seek a more favourable settlement should not expect to use then plead their own asymmetry of means as a reason to escape the usual costs consequences that follow upon their actions. I don’t fault him for not settling – it was for him to make his own best assessment of his chances of success in the action. I simply note that he cannot use his impecuniosity as a sword and a shield at the same time.

[12] On balance, I have decided to award the defendant costs payable by the plaintiff in the amount of $63,000. I am making half of this amount ($31,500) payable within 30 days and collection of the remaining half ($31,500) shall be stayed for a period of 24 months. I encourage the parties to determine their own reasonable payment schedule.

[13] Normal post-judgment interest applies to the costs award.

Sean F. Dunphy, J.

Date: August 25, 2015