ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-12-110604

DATE: 20150917

BETWEEN:

R & G Draper Farms (Keswick) Ltd.
Plaintiff

– and –

Nature’s Finest Produce Ltd., Kejay Farms, Kejay Investments Inc., Jason Raymond Stallaert, Kevin Cornelius Stallaert, Campbell Soup Company and Campbell Soup Company Canada

Defendants

Morris Manning , Q.C. and Theresa R. Simone, for the Plaintiff

Raymond G. Colautti and Anita Landry, for the Defendants Nature’s Finest Produce Ltd., Kejay Investments Inc., Jason Raymond Stallaert and Kevin Cornelius Stallaert

BETWEEN:

Nature’s Finest Produce Ltd., Kejay Farms, Kejay Investments Inc., Jason Raymond Stallaert, Kevin Cornelius Stallaert

Plaintiffs by Counterclaim

R & G Draper Farms (Keswick) Ltd.

• and -

Raymond G. Colautti and Anita Landry, for the Plaintiffs by Counterclaim

Morris Manning, Q.C. and Theresa R. Simone, for the Defendant by Counterclaim

2077583 Ontario Ltd., 1318910 Ontario Ltd., Daniel Ubald Bigras, 1099039 Ontario Ltd., 2123979 Ontario Ltd., C.H. Robinson, A.C. Schmieding Product Co. Inc. and Nicole Shannon Marie Verhey-Stallaert

Raymond G. Colautti and Anita Landry, for the Third Parties 2077583 Ontario Ltd., 1318910 Ontario Limited (incorrectly named as 1318910 Ontario Ltd.) and Nicole Shannon Marie Verhey-Stallaert

HEARD: In Writing

RULING ON COSTS

edwards j.:

Overview

[1] I have now received the costs submissions from the plaintiff, both with respect to the plaintiff’s successful summary judgment motion as well as the plaintiff’s cost submissions with respect to the action as a whole. I received responding submissions from the defendants. A fair review of the competing costs submissions leaves the Court with the distinct impression there has been a complete lack of cooperation amongst counsel with respect to the conduct of this litigation. I do not intend to point any fingers with respect to who is responsible for the litigation, as it unfolded before me, on competing motions for summary judgment. Suffice it to say, that the matter that I resolved was the question of whether or not the parties had entered into a settlement of the debt owed by the defendants to the plaintiff. That motion and issues were relatively simple issues.

[2] A review of the submissions from Mr. Manning, coupled with the responding submissions from defence counsel, leaves me with little doubt that the defendants have chosen to make what was a relatively uncomplicated issue, i.e. the question of whether or not there was a settlement, into a very complicated piece of litigation that now involves a counterclaim.

[3] As I indicated at the time of the hearing of the summary judgment motion, I was of the view that if the Court determined that there was a settlement, that that settlement would be all-encompassing and, therefore, render any counterclaim null and void. That issue is still before the Court and will be dealt with separately. For this reason, I do not propose to deal with the plaintiff’s costs of the action until the issue of the counterclaim has been resolved.

[4] As to the plaintiff’s summary judgement motion, recognizing that it was unquestionably made more complicated by the actions of the defendants vis-à-vis their counterclaim, it is entirely fair, in my view, to point out that the time expended by plaintiff’s counsel for the summary judgment motion, preparations, attendance and preparation for cross-examinations, and the attendance for the argument of the summary judgment motion comes to approximately 460 hours. I recognize that Mr. Manning’s time and the time of Ms. Simone for the various areas covered in the bill of costs was not equal. Nonetheless, if the time was equally apportioned between both counsel, this would generate six weeks of lawyers time at 40 hours per week for each of Mr. Manning and Ms. Simone. In relation to the amount at issue and the amount awarded on the motion for summary judgment, this expenditure of legal resources - in my view, is disproportionate to the result obtained. I also seriously question the need for two senior counsel to be attending to the various issues that ultimately resulted in the successful summary judgement motion.

[5] Mr. Manning is a 1967 year of call, and Ms. Simone is a 1990 year of call. By any definition, Ms. Simone is senior counsel and her actual hourly rate of $500.00 per hour reflects deserved senior status.

[6] While counsel and their client are entitled to assign two senior counsel to a matter such as the one before me, it cannot reasonably be expected that the losing party would be expected to pay for two senior counsel, given the nature of the dispute between the parties. In assessing costs, this Court is guided by the decision of the Court of Appeal in Boucher v. Public Accountants for the Province of Ontario, 2004 14579 (ON CA), which requires that the Court give primary consideration to what the losing party would have expected to pay in costs if unsuccessful. Applying this form of reasoning, the losing party could not have expected to pay for two senior counsel.

[7] In fixing costs I have considered the application of Rule 57.01, and I have considered the principles of proportionality in relation to the total amount of costs claimed in relation to the amount awarded to the plaintiff on the summary judgment motion. I have also considered that while on its face the motion was a relatively simple debt collection, that nonetheless it has been unduly complicated by the various procedural steps taken by the defendants prior to the hearing of the motion. I have also taken into account the fact that the plaintiff appears to have made an offer to settle the action for an amount less than the total amount awarded on the motion for summary judgment. It would appear that the plaintiff offered to settle the action as a whole for $150,000.00 all in. The amount of the judgment in favour of the plaintiff is approximately $169,000.00. In my view, the plaintiff made a reasonable offer to settle that is appropriate to take into account in fixing the costs of the motion for summary judgment.

[8] Taking all of the aforementioned factors into account, I am fixing the plaintiff’s costs of the motion for summary judgment in the amount of $75,000.00 plus HST, plus disbursements. At this stage I am not awarding the plaintiff its disbursements of the action as a whole, and as such would be excluding any disbursements for expert’s fees. I am allowing the disbursements claimed for photocopying, court reporters, court filing fees, travel and accommodation. I fail to see the need for the services of a process server in relation to a motion for summary judgment which can be served by regular mail. The total disbursements awarded for the motion for summary judgement, therefore, total $13,575.81 plus HST. These costs are payable within 30 days. As to the balance of the plaintiff’s costs of the action as a whole, I will defer my assessment in that regard until the completion of the motion presently pending, to determine whether the summary judgment motion is dispositive of not only the plaintiff’s claim but also the defendants’ counterclaim.

Justice M.L. Edwards

Released: September 17, 2015