ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-26451 and CV-14-45847
DATE: 2015-09-14
B E T W E E N:
ERIK HAMALAINEN, TREVOR LUTZ and CAROLYN LUTZ
Richard D. Simmons, for the Plaintiffs
Plaintiffs
- and -
KEN KAVANAGH and RON SHAW
M. Gosia Bawolska, for the Defendants
Defendants
AND
ITS ELEARNING INC.
M. Gosia Bawolska, for the Plaintiff
Plaintiff
- and -
ERIK HAMALAINEN, TREVOR LUTZ and CAROLYN LUTZ, FOSTER MANAGEMENT and TARA FOSTER
Richard D. Simmons, for the Defendants
Defendants
COSTS RULING
PARAYESKI J.
[1] Despite the divided results of the trials together of these matters, ITS eLearning Inc. and Messrs. Kavanagh and Shaw ask that they be awarded costs. I presume that this flows from their having made an offer to settle which they say is more favourable than those ultimate results and which offer the opposite parties ought to have accepted. Those opposite parties, for the most part, submit that instead there should be no order as to the costs of the trials.
[2] While there is some merit to the arguments of those opposite parties regarding the breadth and precise meaning of paragraph 4 of the offer to settle, its general intention is clear: a modest amount would be paid and the actions would both be dismissed without costs. The proposed payment of money and the willingness to dismiss the actions, in my view, represents genuine compromise.
[3] Of course, the making of a “successful” offer is only one factor to be considered in the matrix of issues that surround costs. Those issues are laid out, to a large extent, in Rule 57.01 (1), and I shan’t repeat them here. Other issues include that of censure, in the sense of the court using costs as a method of discouraging inappropriate litigation and litigation conduct. On this front, both “sides” have much for which to answer. Both actions were launched without adequate evidentiary bases. The damages claimed and other relief sought were overblown and overreaching. The trials were unduly protracted. Vast numbers of exhibits were painstakingly described and entered which were of minimal relevance, if indeed they were relevant at all.
[4] I have reviewed the particulars of attendances that together make up the claim for fees being advanced, as well as the disbursements claimed, and make the following observations:
The time said to have been expended by lead counsel for the trial itself appears to be reasonable, as does her hourly rate for fees claimed. I note that Mr. Simmons has not provided his figures for the same items, and I presume that he does not take issue with them. This being said, I am not satisfied with the fees being claimed in respect of junior counsel. It appears to me that her role at trial could have been fulfilled by a clerk at a much reduced hourly rate. While laudable, the education of junior lawyers is not something for which the other side should pay;
The segment on “motions” is unintelligible. Frankly, I do not even know what is meant by the description “motions during course of litigation where costs in the cause, and motions that did not reach the hearing stage”;
Similarly “miscellaneous/uncategorized” as a category is so generally described as to be meaningless;
The time allegedly expended for “post-trial and costs” clearly includes at least some attendances that are not properly assessable as trial costs. In addition, the time appears excessive, especially given that it is not meaningfully particularized; and
None of the claimed disbursements are proven by means of receipts. Some, such as “hotel accommodations during trial” and expert reports appear, at first instance at least, to be excessive.
[5] Taking into consideration all of the factors and issues mentioned above, I am of the view that the most appropriate result would be for Erik Hamalainen, Trevor Lutz and Carolyn Lutz to be responsible to pay costs to ITS eLearning, Ken Kavanagh and Ron Shaw fixed at $50,000.00 all inclusive. The recipients of those costs are to pay Foster Management and Tara Foster notional costs of $1,000.00 all inclusive, which amount was suggested by Mr. Simmons.
Parayeski J.
Released: September 14, 2015
COURT FILE NO.: 11-26451 and CV-14-45847
DATE: 2015-09-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ERIK HAMALAINEN, TREVOR LUTZ and CAROLYN LUTZ
Plaintiffs
- and -
KEN KAVANAGH and RON SHAW
Defendants
AND
ITS ELEARNING INC.
Plaintiff
- and -
ERIK HAMALAINEN, TREVOR LUTZ and CAROLYN LUTZ, FOSTER MANAGEMENT and TARA FOSTER
Defendants
COSTS RULING
MDP:co
Released: September 14, 2015