ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: C-180-12
DATE: 2015-09-24
B E T W E E N:
Nelson Joannette
Simon J. Adler, Counsel for the Plaintiff
Plaintiff
- and -
Josh Alton
Roy A. Fisher, Alysia Alton
Defendants
Kelli Preston, Counsel for the Defendant,
Roy A. Fisher
THE HONOURABLE MR. JUSTICE P.J. FLYNN
COSTS RULING
[1] The contest at trial only involved the Plaintiff and Defendant Fisher (“the Defendant”).
[2] Mr. Fisher was completely successful and the Plaintiff concedes he is entitled to costs.
[3] This dispute only concerns the quantum of those costs. The Defendant seeks $62,762.36 for fees, disbursements and HST based mainly on a claim for partial indemnity and substantial indemnity following service of Offers to Settle on February 6, 2015.
[4] Mr. Adler, for the Plaintiff, says that the fees claimed by the Defendant are excessive, that some of the docketed time seems inappropriate and that there was no need for Plaintiff’s counsel to have a student attend the trial.
[5] So the Plaintiff would concede that partial indemnity fees amounting to about $15,000 would be appropriate.
[6] I agree that charging for a student to attend the trial is ill-advised in this case.
[7] The trial consumed four days. The Plaintiff claimed just under $95,000 in damages and receiving nothing.
[8] While the Defendant argues the proceeding was of medium complexity, I agree with the Plaintiff that the issues were fairly simple: this was a credibility contest in which the Plaintiff and his spouse – witness were both well knocked off their horses.
[9] I disagree with the Plaintiff when he argues that the glitch and delay in the trial was the fault of the Defendant. Rather it was the Defendant’s (and his spouse’s) intentional deceitfulness to the Court which unduly lengthened the trial.
[10] While I may take into account the exchange of Offers made at the weekend prior to the commencement of trial, in my view, while the Plaintiff would have been better off at the end of the day had he accepted any of the Defendant’s Offers, those Offers came too late to trigger the entitlement to substantial indemnity costs from the making of those Offers.
[11] But because of the Plaintiff’s scurrilous attempt to “pull one over” this Court, the Defendant is entitled to something more than mere partial indemnity costs.
[12] My mandate is to fix a fair and equitable costs award based on the reasonable expectation of the losing side.
[13] Mr. Adler’s Costs Outline demonstrates that if successful, he would have sought about $39,000 for partial indemnity costs and/or $55,000 for full indemnity costs.
[14] Accordingly, I fix the Defendant’s costs in the amount of $47,000, all inclusive and order them paid by the Plaintiff within 30 days.
P.J. Flynn J.
Released: September 24, 2015
COURT FILE NO.: C-180-12
DATE: 2015-09-24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Nelson Joannette
Plaintiff
– and –
Josh Alton
Roy A. Fisher, Alysia Alton
Defendants
COSTS RULING
P.J. Flynn J.
Released: September 24, 2015
/lr