COURT FILE NO.: CV-14-502626OT (SIM)

DATE: 2015-09-15

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Arvan Rehab Group Inc., Plaintiff

AND:

Roderick Graham Christian Millea, Millea Physiotherapy Professional Corporation, Nicole Tweedie and Rachel Erauw, Defendants

BEFORE: The Honourable Mr. Justice D.J. Gordon

COUNSEL:
T. Nicholson, Counsel for moving parties/Defendants

P. Capone, Counsel for responding party/Plaintiff

SUPPLEMENTARY ENDORSEMENT re: Costs

[1] In my endorsement, released May 12, 2015 I invited written submissions from counsel on the issue of costs within 30 days. Counsel agreed to an extension of the time period to permit certain inquiry and resolution discussions. Unfortunately, they neglected to seek approval for any extension.

[2] The plaintiff successfully opposed the defendants’ motion to transfer the proceeding from Toronto to Simcoe. On its behalf, Mr. Capone now seeks a cost award of $13,054.92, on a partial indemnity basis. The defendants’ position is that such an award is too high. Mr. Nicholson suggests $4000 would be appropriate.

[3] This is essentially a contract case. I previously concluded the proceeding could have been commenced in either Toronto or Simcoe. The plaintiff chose Toronto. Having regard to the factors applicable to Rule 13.1.02 (2), I also concluded the defendants had not met the test for a transfer to Simcoe and the presumptive entitlement of the plaintiff to commence the proceeding where it saw fit was not rebutted. This was a close call. The factors did not result in an overwhelming result. Hence, it cannot be said the motion was without merit.

[4] Pursuant to Rule 13.1.02 (3.1), the defendants had the option of bringing their motion in Simcoe or Toronto. They chose Simcoe. Plaintiff’s counsel was required to travel from Toronto adding considerable time for his attendance on an otherwise short motion. In these circumstances, travel time is a legitimate component of the cost claim.

[5] A cost award must be reasonable. This was not a difficult motion. The law on transfer is well settled. Application of the legal principles to the facts involved consideration of the well known factors. In this regard, I have great difficulty in accepting 22.17 hours as claimed by Mr. Capone for preparation of the motion material and factum. In my view, this component of the claim is excessive. I come to a similar conclusion regarding research claimed of 3.17 hours. For both items, I allow a total of 8 hours. I also allow 6.5 hours for attending on the motion hearing, including travel, as claimed and as discussed above.

[6] The partial indemnity rate of $350 is reasonable given the experience of Mr. Capone. The disbursements are not challenged.

[7] In result, costs are awarded to the plaintiff, payable by the defendants within 30 days fixed in the amount of $6752.95, calculated as follows:

Fees for preparation of documents, factum and hearing 2800.00

Counsel fee for attendance on motion 2275.00

Fees for preparation of costs submissions 500.00

HST on fees 724.75

Disbursements 401.06

HST on disbursements 52.14

Total $6752.95

Gordon, J.

Date: September 15, 2015