ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-14-511727
DATE: 2015-10-09

BETWEEN:

ANTHONY BETTS
Plaintiff

– and –

IBM CANADA LTD.
Defendant

Lumi Pungea, for the Plaintiff

Jennifer Dolman, for the Defendant

WRITTEN SUBMISSIONS ON COSTS

COSTS ENDORSEMENT

Diamond J.:

[1] On August 18, 2015, I heard two motions for summary judgment brought by both the plaintiff and the defendant. By Reasons for Decision released on August 25, 2015, I dismissed the plaintiff’s motion for summary judgment and granted the defendant’s motion for summary judgment. I then invited the parties to exchange and file written submissions with respect to costs of the action in the event that they could not agree upon same.

[2] I have now received and reviewed written costs submissions from both parties. The defendant submits that it has incurred full indemnity costs (inclusive of disbursements) of $304,733.35. The defendant further submits that although its partial indemnity costs total $176,955.41, it is seeking costs of the action in the amount of $100,000.00 plus $6,346.83 in disbursements and HST.

[3] Both parties apparently agree that the plaintiff is of relatively modest means, having recently commenced new employment earning a salary of approximately $55,000.00 per year. The plaintiff takes issue with the amount sought by the defendant, and in particular submits that even the reduced $100,000.00 figure is excessive and disproportionate to the complexity of this matter and the amount in issue.

[4] The plaintiff further takes issue with the hourly rates charged by the defendant’s solicitors, and the number of hours claimed in the defendant’s Bill of Costs.

[5] Overall, the Court is required to consider what is “fair and reasonable” in fixing costs with a view to balancing compensation of a successful party with a goal of fostering access of justice: Boucher v. Public Accountants Council (Ontario) (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).

[6] Pursuant to Rule 57.01 of the Rules of Civil Procedure, the Court may consider the following factors when exercising its discretion to award costs:

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs.

[7] To begin, I agree with the plaintiff that the hourly rates charged by the solicitors for the defendant are excessive. The plaintiff’s proposed hourly rates, as set out in paragraph 15 of his costs submissions, are reasonable.

[8] Further, the hours claimed in the Bill of Costs are also excessive, and in some areas hard to fathom. As this was a matter which proceeded under the Simplified Procedure, examinations for discovery were limited to two hours for each of the plaintiff and defendant. The defendant’s Bill of Costs includes a section called “Examination for Discovery” which lists time spent by three lawyers, a law clerk and an articling student. Despite the examinations not lasting more than four hours in total, nearly seventy hours were docketed by the three lawyers alone. While I realize that there is obviously time to be incurred in preparing for examinations for discovery, these numbers are disproportionate to the task.

[9] Similarly, the time associated with the motions for summary judgment (i.e. preparing two motion records, two factums and two books of authorities) total over 270 hours spent by those same three lawyers. As set out in my original Reasons, this was not a complicated matter and, for the most part, a fact-driven case.

[10] The defendant initially served an offer to settle permitting the plaintiff to dismiss his action on a without costs basis. While this is essentially an offer to capitulate, it is nevertheless still a factor to be considered given the success of the defendant’s motion for summary judgment.

[11] In the circumstances of this case, and given the moderate complexity of this proceeding and the fact that the parties agreed to have the action determined summarily, I find that costs of the action (inclusive of the motions for summary judgment) be fixed in the all-inclusive amount of $42,500.00 and payable by the plaintiff to the defendant forthwith.

Diamond J.

Released: October 9, 2015

COURT FILE NO.: CV-14-511727
DATE: 20151009

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

ANTHONY BETTS
Plaintiff

– and –

IBM CANADA LTD.
Defendant

COSTS ENDORSEMENT

Diamond J.

Released: October 9, 2015