NEWMARKET

COURT FILE NO.: CV-13-116621

DATE: 20150903

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: EKATERINA EVTROPOVA, Litigation Administrator of the Estate of EVA RAVIKOVICH, deceased, EKATERINA EVTROPOVA, personally, VYCHESLAV RAVIKOVICH, GALINA MECHTCHERIAKOVA and LEONID YUZEFOVICH, Plaintiffs

AND:

HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, REPRESENTED BY THE MINISTER OF EDUCATION FOR THE PROVINCE OF ONTARIO, Defendants

BEFORE: THE HON. MADAM JUSTICE M.E. VALLEE

COUNSEL:
Mr. Patrick Brown, for the Plaintiffs
Ms. Sara Blake, for the Defendants

HEARD: By written submissions

COSTS ENDORSEMENT

Overview

[1] The defendant brought a Rule 21 motion to strike the plaintiffs’ claim, alleging that it did not disclose a cause of action. The motion was dismissed.

[2] The plaintiffs filed a costs outline. They request partial indemnity costs as follows:

Fees $26,570.00
HST 3,454.10
Disbursements 439.25
HST 57.10
Total $30,520.37

[3] The substantial indemnity amount for fees is shown to be $35,400. Four lawyers and three students worked on the matter.

The Defendant’s Position

[4] The defendant states that $11,850 is the appropriate amount to award for partial indemnity fees for the following reasons:

(a) The motion was a straightforward pleadings motion. The legal issues regarding the duty of care between the government and an individual are not complex.

(b) The partial indemnity calculation is too high. It should be 60% of the actual cost.

(c) Under “Information to the Profession,” the maximum partial indemnity rate for a student-at-law is $60, for counsel of less than 10 years is $225, for counsel of more than 10 years but less than 20years is $300 and for counsel of 20 years and over is $350. The hourly rate sought for Mr. Brown’s work is higher than the allowable amount.

(d) Much of the work that was done for this motion will overlap with the ongoing proceedings.

(e) There was no need for two lawyers to review the defendant’s motion materials and conduct legal research.

(f) There was no need for three students to conduct legal research.

(g) Some of the time on the costs outline is for work relating to amending the claim. This must be removed.

(h) The plaintiffs should not recover fees for Mr. Nisker’s time to attend on the motion. He did not appear as counsel of record and he had to leave to attend on another matter.

Analysis

[5] This was a very important motion for the plaintiffs. The existence of their claim was at stake.

[6] Although this was a pleadings motion, the legal issues were complex. The plaintiff’s claim is novel. The matter proceeded as a long motion. The defendant’s factum was 22 pages long. Its book of authorities included 18 cases, excerpts from the Day Nurseries Act, R.S.O. 1990 c. D.2 and the Hansard. The plaintiffs’ factum was 35 pages long. They relied on 13 cases. Submissions were lengthy.

[7] Given the extensive materials filed by the defendant, it could have reasonably expected that the plaintiff would prepare and file extensive materials in response. The defendant did not provide any information regarding its own costs to prepare and attend on the motion. Two counsel appeared on the motion for the defendant.

[8] The plaintiffs’ claim is novel. The defendant cannot be criticized for bringing the motion; however, the test on a Rule 21 motion is very high. It must be plain and obvious that the claim discloses no reasonable cause of action. The defendant would have expected that there was a significant risk in bringing the motion.

[9] I agree with the defendant’s position that the plaintiffs spent an inordinate amount of time on the matter. Two lawyers, Ms. Mazzucco and Mr. Nisker, both reviewed the defendant’s motion materials and carried out research. Three students also carried out research. Five people should not have been required to do research. Some of their efforts may have overlapped.

[10] Mr. Brown did limit his involvement to preparing for attendance on the motion and his actual attendance. The other required work was done by lawyers with a significantly lower hourly rate. Mr. Brown’s partial indemnity rate is shown as $350. According to the Information for the Profession, his rate ought to be $300.

[11] The plaintiffs amended their claim. The motion proceeded on the basis of the amended claim. I agree with the defendant that the hours spent by plaintiffs’ counsel regarding the amendment are not properly attributed to this motion.

Conclusion

[12] A costs award should reflect what the court views as a fair and reasonable amount to be paid by the unsuccessful party rather than an exact measure of the actual costs incurred by the successful litigant. See Zesta Engineering Ltd. V. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 (C.A.). Ultimately, in fixing an amount for costs, the overriding principles are fairness and reasonableness. See Boucher v. Public Accountants 2004 14579 (ON CA), 71 O.R. (3d) 291.

[13] Taking into account the issues set out above, in my view, a fair, reasonable and proportionate costs award for this motion is $19,000 plus HST of $2,470. The defendant shall pay $21,470 to the plaintiffs within 30 days.

VALLEE, J.

Date: September 3, 2015