CITATION: 118143 Ontario Inc. v. City of Mississauga, 2015 ONSC 7528
COURT FILE NO.: 02-BN-4967
DATE: 2015 12 02
CORRECTED: 2015 12 22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
118143 ONTARIO INC. CARRYING ON BUSINESS AS CANAMEX PROMOTIONS AND NEIL RITCHIE CARRYING ON BUSINESS AS AFFORDABLE PORTABLES
E. Marshall Green and Christopher Salazar, for the Plaintiffs
Plaintiffs
- and -
THE CORPORATION OF THE CITY OF MISSISSAUGA
Ted Frankel and Colin Pendrith, for the Defendant
Defendant
CORRECTED DECISION ON COSTS
CORRECTION NOTICE: This decision has been amended as follows:
The subtitle above paragraph 54 has been corrected to read “BDO Canada LLP”;
The first line of paragraph 54 has been amended to read “City of Mississauga”; and
The last sentence of paragraph 64 has been amended to read “These costs are payable by the plaintiffs jointly and severally,” consistent with the award of costs to Mississauga in the preceding sentence.
EMERY J
[1] The plaintiffs’ action was dismissed on June 10, 2015. The defendant, City of Mississauga seeks its costs for this action since April 2007, and for 15 days of trial, including submissions, that took place over a span of five months. Mississauga seeks its own costs on a partial indemnity basis up to and including September 21, 2013, and “elevated” partial indemnity costs since that date for a total of $455,235.03.
[2] Mississauga also seeks disbursements, including applicable tax, in the amount of $177,621.92. A substantial portion of those disbursements is made up of the invoices totaling $148,111.66 from BDO Canada LLP for the services of Mr. Bourne and his team as experts on economic loss.
[3] The plaintiffs ask this court to find that costs should favour them on certain issues, or that the amount for costs payable to Mississauga should be reduced according to findings of the court on various issues that favoured the plaintiffs. Alternatively, the plaintiffs submit that costs should be awarded to the plaintiffs or Mississauga on an issue by issue basis, depending on the degree of success achieved by one party or the other on those issues.
[4] The plaintiffs are in this way raising a question in the law of costs that resurfaces from time to time about whether a distributive costs order is available at law and if so, whether a distributive costs order would be appropriate to make in this case. If not, the plaintiffs have made submissions on what costs order would be appropriate having regard to the factors set out in rule 57.01 and the guiding principles under the case law.
[5] I propose to set out in summary fashion the nature of the claims made in the action and the defense, the results obtained and the relative success achieved by the parties to determine entitlement to costs on those claims and defenses. I then propose to examine the law relating to distributive cost orders and the factors that I must consider to guide the exercise of my discretion as to costs under section 131 of the Courts of Justice Act. Once entitlement is determined, I shall then go on to consider the level of costs to which one or both parties are entitled, and finally I shall determine the quantum of those costs.
NATURE OF THE ACTION
[6] The plaintiffs claimed damages in the amount of $7,500,000 against Mississauga for negligently enforcing an expired bylaw. The question of whether By-law 301-94 (the “1994 bylaw”) had expired on January 30, 2001 was never in issue at trial because the Court of Appeal in 2004 had upheld the finding made by Justice Howden on a Rule 21 motion of how and why the 1994 bylaw had expired on January 31, 2001. Mississauga paid the plaintiffs their costs of the motion before Justice Howden and the costs awarded by the Court of Appeal to make that determination.
[7] The costs at issue for the action and resulting trial essentially consist of three parts. The first part concerns that period of time from April 2007 to February 2010. During this time, Mississauga amended its statement of defence to rely upon a 1988 bylaw. Mississauga maintained that the 1988 bylaw governed sign regulation in Mississauga notwithstanding that the 1994 bylaw had expired. This defence was intended to go in whole or in part to the issue of whether the plaintiffs’ signs installed as of May 1, 2002 were grandfathered from subsequent legislation. I heard evidence at trial that this amendment was the first time the 1988 bylaw had been invoked as the bylaw applicable to the plaintiffs’ claims, and it was the first time that it had been made an issue in any pleading or material in the litigation.
[8] The second part concerns the time incurred after July 1, 2010 to May 2013. During this time, the parties were involved primarily with pre-trial matters and trial preparation.
[9] The third part consists of the trial itself between January and May 2014.
[10] In addition to raising the 1988 bylaw as a defence, Mississauga vigorously opposed the plaintiffs’ cause of action for negligent enforcement of the 1994 bylaw on the basis that Mississauga owed no duty of care to the plaintiffs. Mississauga also pleaded and relied upon the statutory defence that it was protected by section 450 of the Municipal Act, 2001. Mississauga opposed the plaintiffs’ claim for damages representing the loss of value for signs taken down by either Mississauga or the plaintiffs themselves and for economic loss based on income projections over 10 years and 30 years in duration, respectively.
[11] In summary, I found that the 1988 bylaw was never intended to apply to portable signs. Notwithstanding the absence of any applicable bylaw between January 31, 2001 and May 1, 2002, I found that Mississauga owed no private duty of care when it carried out its policy making function as a public authority to enact or enforce By-law 0054-2002 (the “2002 bylaw”). I also found that Mississauga was protected from liability by section 450 of the Municipal Act, 2001 as the enforcement of the 2002 bylaw was a policy decision made by Mississauga in good faith, even if the plaintiffs’ signs were “grandfathered” from further regulation.
[12] I determined that even if I had found Mississauga liable to the plaintiffs, the plaintiffs’ damages would have been restricted to $121,535 between them. I made findings on the life of the signs on the evidence, and the failure of the plaintiffs to seek an injunction from the court to preserve the earning capacity of those signs during the litigation.
[13] The plaintiffs claim success for the conclusions I reached about the inapplicability of the 1988 bylaw. They seek costs for litigating that issue as it took up a great deal of time at trial.
[14] Mississauga seeks the overall costs of the action and the trial even though they were unsuccessful with respect to the 1988 bylaw. Mississauga has made submissions in reply that where an adverse party argues that where success is divided on issues, an order that the unsuccessful party’s costs should be subtracted from those of the successful party would be “misguided and wrong”. Costs awarded on an issue by issue basis is sometimes known as a distributive costs order. Mississauga argues that this is what the plaintiffs are seeking to accomplish by asking for an order in the nature of a distributive costs award.
ENTITLEMENT
[15] In Eastern Power Limited v. Ontario Electrical Financial Corporation, 2012 ONCA 366 the Court of Appeal reaffirmed at paragraph 18 that the use of a distributive costs award has been restricted by earlier decisions to the rarest of cases, and that individual issues are better considered under the general discretion exercised under the guidance of the factors set out under Rule 57.01(1). See also Pearson v. Inco Ltd., 2006 CanLII 7666 (Ont. C.A.) in this regard.
[16] Making an order that distributes costs on an issue by issue basis is not recognized as a factor under Rule 57.01(1). In my view, the intention of the rules committee by leaving it out as a factor must be construed as an implicit direction that a court should not distribute costs in a civil case on an issue by issue basis. Its absence stands in marked contrast with Family Law Rule 24(6) as an example of authority to apportion where success is divided. In the context of a civil action, such a feature is conspicuous by its absence under Rule 57.01(1). In a family law case, parties may each claim victory for the result on various issues which are themselves discrete results. In a civil action, the result is achieved upon the overall findings of liability and damages. The determination of success by one party relating to another in a civil action turns on the over-all result achieved. It is primarily this measurement of success that the court depends upon to exercise its discretion under section 131 of the Courts of Justice Act when awarding costs.
[17] Mississauga was clearly the successful party on defending the action and having it dismissed. In Ontario, costs are normally awarded to the successful party on a partial indemnity basis: Bell Canada v. Olympia and York Developments Ltd. (1994), 1994 CanLII 239 (ON CA), 17 O.R. (3d) 135 (Ont. C.A.).
[18] The plaintiffs submit that the no costs should be awarded because the plaintiffs put forward this action as “public interest” litigation. The issue of what is “public interest” litigation and the policy reasons for a court to exercise judicial discretion to not order costs was discussed in great detail by Justice Ducharme in the St. James Preservation Society v. City of Toronto and Rector and Church Wardens of St. James Cathedral, Toronto, 2006 CanLII 22806 (SCJ).
[19] I have considered the factors set out by Justice Ducharme to determine if the plaintiffs’ action against Mississauga was “public interest” litigation and conclude it was not. The plaintiffs are private business entities. They seek to promote and to preserve their own interests. Despite the fact that Mississauga is a municipality and a public authority, the plaintiffs brought this action to obtain an award of damages from Mississauga rather than a determination of rights and obligations that are of a public nature. While the application to Justice Howden and resulting appeal could have been argued as public interest litigation, the nature of that litigation ended with the determination that the 1994 bylaw had expired in 2001 and the payment of costs for the motion and appeal.
[20] I also consider that the nature of the claims made by the plaintiffs were private in nature and not made in the public interest.
[21] As far as I can determine, the litigation has had no adverse impact on the public interest. The result of the action and trial has impacted only the parties, except to the extent that the municipal taxpayer in Mississauga has been saved the expense of paying a judgment.
[22] The financial expense of the litigation has been incurred by the parties as litigants. The litigation did not involve a public interest component.
[23] I therefore consider the plaintiffs’ submission that this action was in the nature of public interest litigation to be unfounded. I am not prepared to consider this submission when exercising my discretion as to costs.
[24] Having regard to the general rule that costs follow the event and knowing no reason to disentitle Mississauga to seek indemnification for the expense incurred to defend itself, Mississauga is awarded the costs of this action.
LEVEL OF COSTS
[25] Mississauga seeks its cost of this action on a partial indemnity basis between April 2007 and May 2013. After May 2013, Mississauga seeks its costs on an “elevated” partial indemnity basis up to and including trial. The difference between the partial indemnity costs and the elevated partial indemnity costs Mississauga is seeking is demonstrated by the increase in Mr. Frankel’s hourly rate from $253 an hour claimed on a partial indemnity basis, to $315 an hour on an elevated partial indemnity basis. The claim for elevated partial indemnity costs is based on an offer to settle served by Mississauga on September 21, 2013 to pay the plaintiffs the total sum of $360,000 plus prejudgment interest. That offer to settle remained open until one minute after the commencement of trial, at which time it expired.
[26] Curiously, counsel for Mississauga did not attach a copy of the offer to settle served on September 21, 2013 in either its initial costs submissions or its reply costs submissions. Mississauga provided the letter from its counsel to Mr. Green and Mr. Salazar dated September 21, 2013 in which that offer to settle was served which I found in the plaintiffs’ submissions under Schedule “B”, but only the plaintiffs’ response to a request to admit was filed with that letter. I therefore have no knowledge of its actual terms, let alone the breakdown between any amount offered to one or both plaintiffs, and for what amounts.
[27] Mississauga refers to the decision of the Court of Appeal in S & A Strasser Ltd. v. Town of Richmond Hill (1990), 1990 CanLII 6856 (ON CA), 1 O.R. (3d) 243 as authority for the court to award costs at an elevated level to a successful defendant. Strasser involved a trial decision in which the trial judge dismissed the action entirely. The plaintiffs in Strasser had made a claim for damages in the amount of $1,000,000 which had been reduced to $70,000 just prior to trial. The plaintiffs had also been served earlier with an offer to settle in the amount of $30,000 to settle the action. The trial judge awarded costs to the successful defendant on a solicitor and client basis.
[28] In Strasser, the court recognized that Rule 49 does not provide for the circumstance where a defendant serves an offer to settle and the action is subsequently dismissed in its entirety at trial. The award of substantial indemnity costs to the defendant was upheld on appeal as an exercise of discretion by the trial judge under the factors set out in Rule 57.01(1). This may be why Mississauga did not provide this court with a copy of the offer to settle as it may not rely upon the offer to settle under Rule 49.
[29] Strasser was subsequently considered in Scapillati v. A. Potvin Construction Limited, 1999 CanLII 1473, also at (1999) 44 O.R. (3d) 737 (Ont. C.A.). There, the Court of Appeal reaffirmed that where the plaintiff’s claim failed entirely, Rule 49 has no application whatsoever. However, the court went on to explain that the principle the circumstances in which (solicitor and client costs) were awarded in Strasser is very narrow.
[30] The principle that emerges from Strasser and Scapillati on the scope of discretion for the court to award substantial indemnity costs to a successful defendant was articulated by the Court of Appeal in Davies v. Clarington (Municipality), 2009 ONCA 722 at paragraph 40 as follows:
In summary, while fixing costs is a discretionary exercise, attracting a high level of deference, it must be on a principled basis. The judicial discretion under rules 49.13 and 57.01 is not so broad as to permit a fundamental change to the law that governs the award of an elevated level of costs. Apart from the operation of rule 49.10, elevated costs should only be awarded on a clear finding of reprehensible conduct on the part of the party against which the cost award is being made. As Austin J.A. established in Scapillati, Strasser should be interpreted to fit within this framework - as a case where the trial judge implicitly found such egregious behaviour, deserving of sanction.
[31] I do not consider the plaintiffs to have conducted themselves improperly or by reprehensible conduct to justify awarding an elevated level of costs.
[32] The costs throughout the action are therefore awarded to Mississauga on a partial indemnity basis only.
QUANTUM
[33] The costs awards I make must reflect the notions of fairness and reasonableness embedded in the common law. More to the point, the court held in Boucher et al. v. Public Accountants Council for the Province of Ontario et al., 2004 CanLII 14579 (ON CA), [2004] 71 O.R. (3d) 291 (Ont. C.A.) that costs awards should reflect what the court views as a fair and reasonable amount that should be paid by an unsuccessful party rather than an exact measure of the actual costs incurred by the successful party. In Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (ON CA), [2002] O.J. No. 4495 (Ont. C.A.) the court also directed trial courts to consider what an unsuccessful party could reasonably expect to pay as a measure of what would be fair and reasonable.
[34] A fair and reasonable measure of what the unsuccessful party could reasonably expect to pay for costs may be determined by looking at that party’s bill of costs. The plaintiffs seek costs consisting of total fees in the amount of $319,639.61 on a partial indemnity basis, and disbursements of $18,079.89. It would appear from the bill of costs that the plaintiffs do not seek recovery for the invoices rendered by Mr. Hards, their expert on economic loss.
[35] It is instructive to note that the plaintiffs provided a responding bill of costs that was structured to align with the bill of costs submitted by Mississauga. For the time prior to July 1, 2010, Mississauga claims $31,999.63 for the documentary disclosure and examination for discovery process, compared with the plaintiffs’ fees for $15,973. I reduce Mississauga’s costs for the discovery stage of the action to $16,000 to bring it to a level footing with the amount expended the plaintiffs for the same work.
[36] For time after July 1, 2010, Mississauga claims $1,290.80 to review pleadings and the fresh as amended reply served by the plaintiffs. Mississauga also claims a further $8,304.60 for summarizing the transcripts of the plaintiffs and processing documents into a database, and to review answers to undertakings. The plaintiffs claim $7,519.65 for review of pleadings, the preparation of the fresh as amended reply and correspondence with opposing counsel. I find that Mississauga’s claim in this regard is reasonable.
[37] Mississauga claims $7,909.32 on a partial indemnity basis, and $249,704.01 on an elevated partial indemnity basis to prepare for trial, including the subsequent preparation of costs submissions. The plaintiffs claim $145,881.44 for a similar amount of time spent on preparing for trial. I hereby reduce the amount for fees claimed by Mississauga on an elevated partial indemnity basis in the amount of $249,704.01 to $202,260 for that time on a partial indemnity basis, resulting in a total of $210,169 for comparative purposes.
[38] I have reviewed the time claimed by Mr. Frankel of 365 hours and by Mr. Pendrith of 359.6 hours to prepare for trial. I find those claims to be excessive for two reasons. First, there were no dockets provided to substantiate the expenditure of that amount of time by each counsel. Second, Mr. Graham and Mr. Salazar claim 275.8 hours and 252.6 hours respectively. This results in the difference of 196.2 hours between the two sets of counsel. In keeping with the principle that costs should be fair and reasonable and informed by what the unsuccessful party could reasonably expect to pay, yet respecting the amount of preparation time necessarily spent by counsel for Mississauga for the result achieved at trial, I am reducing Mississauga’s preparation time by 100 hours at the blended partial indemnity rate of $222.50 an hour, for a reduction of $22,500. The net amount allowed to Mississauga for trial preparation is therefore $187,919.
[39] For attendance at trial over 15 days, Mississauga claims fees of $82,582.50 on an elevated partial indemnity basis, which I normalize to $66,891 on a partial indemnity basis for comparative purposes. The time claimed by Mississauga for attendance at trial is fair and reasonable under the circumstances. By comparison, the plaintiffs claim costs on a partial indemnity basis in the amount of $77,288.71 for attendance at trial.
[40] In summary, I find the costs claimed by Mississauga for all steps taken in this action since July 2007 to be reasonable, except for the discovery stage, the preparation of Mississauga’s expert and preparation for trial. Those three matters have adjusted to what I consider to be fair and reasonable amounts on a partial indemnity basis. This determination of costs is subject to a reduction that shall be made under rule 57.01 (1) (e) on the overall amount later in these reasons.
[41] In addition to the guiding principles set out in cases such as Boucher and Zesta Engineering, I am to apply the factors set out in Rule 57.01(1) and to take into account any other consideration in the Rules of Civil Procedure that applies. I find that the following are relevant to this determination:
- Importance of the issues.
[42] There is no question that the issues were of vital importance to each of the parties. The plaintiffs engaged in litigation with a well-funded defendant for 12 years to seek a finding of liability. Their claim for damages alleged a loss of revenue not only since 2002, but for a projected period of 30 years.
[43] Mississauga defended the claim vigorously to oppose any finding that it owed a private law duty as a public authority based on an unfortunate gap in sign regulation in Mississauga between 2001 and 2002. Mississauga also defended the claim vigorously on the damages claimed by both plaintiffs through the cross-examination of the plaintiffs’ witnesses as well as the evidence given by its own expert.
- Amount involved
[44] The plaintiffs collectively requested damages in the amount of $7,500,000 based on a 30 year projection for economic loss. The costs claimed by Mississauga is proportionate to the amount involved at trial. Under Rule 1.04(1.1), the court shall make orders and give directions that are proportionate to the importance and the complexity of the issues and to the amount involved in an action when applying the rules. It is clear from the amount at stake that extraordinary efforts made by counsel on each side of the case were justified to represent the interests of their clients, and the costs claimed by Mississauga are proportionate to the amount involved.
- Unnecessary delay or expense
[45] I consider the delay of the plaintiffs in advancing the action between 2004 and 2007 as a factor I should take into account for costs. The delay required renewed activity in 2007 on the part of both the plaintiffs and the defendant to refamiliarize themselves with the action, and to take the steps described under categories 1 through 4 of each bill of costs. This is an expense that was unnecessarily duplicated.
[46] I do not have sufficient details to know what time or steps were wasted by this delay. However, I find it necessary to state that this action was commenced by the plaintiffs and it was their case to advance it to trial on the merits in a timely manner. I say this also because of the activity before and after the motion before Justice Howden and with respect to the appeal of his order that should have provided the plaintiffs with the path forward. Therefore, even though I attribute unnecessary delay to the plaintiffs, I have insufficient evidence of wasted expense during this time to make a finding.
- Whether a party has unnecessarily complicated the matter
[47] This is the factor that applies to Mississauga’s insistence that the 1988 bylaw governed sign regulation in Mississauga between January 30, 2001 and May 1, 2002. Adherence to the 1988 by-law, if it applied, would have required the plaintiffs to obtain permits for the signs installed or that could have been installed for customers at required locations that made up the basis of the plaintiffs’ claim for damages. Even though this issue took up significant time at trial, it does not make this case one of the rarest of cases to justify a distributive costs order.
[48] I consider it relevant to include the time it took to hear evidence on the issues relating to the 1988 bylaw as a factor on costs. It took time for the plaintiffs to deal with it in both written and oral closing submissions. The success achieved by the plaintiffs on that issue is therefore a proper consideration under Rule 57.01(1)(e). The defendant was unsuccessful on the issue relating to application of the 1988 bylaw to the facts and should not be rewarded for the time taken on the issue.
[49] While it may seem I am making a determination that resembles a distributive costs order, I am not. I am exercising my discretion under the rubric of Rule 57.01(1) to reduce the fees of Mississauga to take the plaintiffs’ success on the 1988 bylaw the issue into account. I am making this reduction on the basis that the time expended on the action since 2007 can be allocated into quartiles. The first quartile deals with the 1988 bylaw, the second quartile deals with whether Mississauga owed a duty of care to the plaintiffs, the third quartile concerns whether Mississauga had viable defences to the plaintiffs’ claims in fact or in law, and the final quartile addresses the evidence with respect to damages. I am deducting 25% from the fee component of the costs for Mississauga’s lack of success on the issue relating to the 1988 bylaw as the time allocated in the action and at trial under the first quartile.
- Any other consideration regarding costs
[50] Mississauga claims a further $10,531.36 on a blended rate basis to discuss potential experts and to meet with Mississauga and its expert for the purpose of obtaining a report for trial. I have readjusted this amount to $10,000 on a partial indemnity basis. Mississauga also claims $14,462.53 for the preparation regarding an attendance at pre-trial conferences, compared with $11,517.39 for the plaintiffs which I find relatively equivalent.
[51] I assess the global fees claimed by counsel for Mississauga as adjusted on a partial indemnity basis at $368,704. It is from this global amount that I deduct 25% for the issue raised by Mississauga for the 1988 bylaw. This deduction reduces the assessment of fees to approximately $275,000, which I consider to be a fair and reasonable amount to award Mississauga under all of the circumstances.
[52] I do not give weight to the plaintiffs’ submission that had Mississauga responded properly to the various requests to admit, the trial would have been truncated and made more efficient. Mississauga responded properly to each Request to Admit and its response meant that the signs that were installed as of May 1, 2002 did not require further proof.
[53] In the final analysis, I consider $275,000 for legal fees to be a fair and reasonable amount to award Mississauga on a partial indemnity basis.
DISBURSEMENTS
Invoices of BDO Canada LLP
[54] The City of Mississauga seeks $148,111.66 as a disbursement for the services of Mr. Bourne and his firm, BDO Canada LLP.
[55] The invoices for Mr. Bourne’s services and how BDO Canada LLP billed for those services, the time allocated for those services and how the value for those services is calculated was not contained in the cost submissions filed by Mississauga. I therefore had no basis to determine how the amount claimed was justified or supported.
Function of BDO Canada LLP
[56] I find that without an itemized account or invoice, it is difficult to determine the value of the services provided by Mr Bourne or anyone from BDO Canada LLP to justify the disbursement claimed for their services in the amount of $148,111.66. This difficulty is magnified by the fact that the claim for the invoices of BDO Canada LLP is found in taxable disbursements incurred before July 1, 2010. The timing of this disbursement seems out of alignment when compared to the time claimed by Mr. Frankel and Mr. Pendrith for trial preparation much closer to trial. I observed Mr. Bourne to be present in court during the evidence of various witnesses before he testified as the expert witness on behalf of Mississauga on damages. However, no claim for invoices after July 1, 2010 appears in Mississauga’s bill of costs.
[57] Mr. Frankel filed a reply brief on costs after receiving the cost submissions of the plaintiffs. In that reply brief, Mr. Frankel argues as follows:
Given the plaintiffs’ claim for $7.5 million, and expert report from Grant Thornton which allegedly substantiated that amount, it was reasonable and proportionate in the circumstances for the City to engage a well-respected forensic accounting expert in response.
The plaintiffs’ submission that Mr. Bourne “approved and adopted the loss quantification model created by” Mr. Hards misses the point. Mr. Bourne’s report effectively demonstrated that the assumptions plugged into that model (about sign attrition, etc.) were incorrect, and that a much more realistic damages figure is arrived at when the correct contingencies are applied (including a “customer survival” contingency, based on data from the impugned field study).
The fact that Your Honour ruled that the grandfathered signs would have only lasted between two to four years – rendering the long-term contingencies mostly moot – is a failing of the plaintiffs, not of Mr. Bourne.
Section 26 of Tariff “A” to the Rules provides that a disbursement for an expert is payable where “reasonably necessary for the conduct of the proceedings.” Without question, the disbursements associated with Mr. Bourne and BDO Canada satisfy this criteria.
[58] The plaintiffs argue that Mr. Bourne effectively approved and adopted the loss quantification model created by their own expert, Thomas Hards, except to reject a post 2001 “profit percent” for Canamex which was based on an assumption that ownership of a truck would have somehow allowed Canamex to operate more profitably. The plaintiffs also point to another difference between the opinion given by Mr. Hards and Mr. Bourne in the form of Mr. Bourne’s position that the plaintiffs would have experienced a loss of grandfathered status incrementally each year. The plaintiffs rely upon various concessions made by Mr. Bourne in cross-examination going to the ability to support his assumptions. The plaintiffs also call attention to the fact that BDO Canada LLP did no provided a breakdown showing the charges for Mr. Bourne services. This included the controversial “field study” that resulted in BDO Canada LLP scrutinizing the site of each location on which the plaintiffs had mobile signs installed on May 1, 2001.
[59] The plaintiffs also note that there is no reference at all to Mr. Bourne personally or to his report anywhere in the reasons for judgment.
[60] The plaintiffs summarize the value of Mr. Bourne’s services at paragraph 29 with the following statement:
Based on the aforementioned, the Bourne Report was unnecessary and unhelpful, is unsupported with any type of breakdown so as to allow the Court to assess its reasonableness, includes significant costs for tasks not required or helpful to the Court, and is, accordingly, unrecoverable as a valid disbursement. In the aforementioned reasons.
[61] I have no doubt that Mr. Bourne and his team provided insightful advice and guidance to counsel for Mississauga in the pleading and discovery stages of the action. Similarly, BDO Canada LLP may have provided consultation services of value to Mississauga and its counsel during the preparation for trial and at the trial itself. These services would have benefited counsel in terms of writing the report to critique Mr. Hards’ report and to assist with preparing counsel for the cross-examination of all fact witnesses, the cross-examination of Mr. Hards as the expert witness called by the plaintiffs, and giving his own opinion evidence. The evidence given by Mr. Hards to which reference is made in the reasons for judgment left it unnecessary to discuss Mr. Bourne’s evidence as no liability was found against Mississauga.
[62] In the end, the law of costs requires that the plaintiffs as the unsuccessful parties should only pay what is fair and reasonable for a disbursement of this nature. This is especially the case when the invoice for those services and any description of those services has not been provided. I therefore award $50,000, including HST for this disbursement.
Other Disbursements
[63] I approve the other disbursements in the amount of $4,314.37 incurred by Mississauga or its counsel prior to July 1, 2010, $23,095.02 including HST after July 1, 2010 for taxable disbursements, and $2,100.87 after July 1, 2010 for non-taxable disbursements for a total amount of $29,510.26.
ORDER
[64] I therefore award costs to Mississauga in the amount of $275,000 plus HST for fees, and $79,510.26 for disbursements. These costs are payable by the plaintiffs jointly and severally.
EMERY J
Released: December 2, 2015
Corrected: December 22, 2015
CITATION: 118143 Ontario Inc. v. City of Mississauga, 2015 ONSC 7528
COURT FILE NO.: 02-BN-4967
DATE: 2015 12 02
CORRECTED: 2015 12 22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
118143 ONTARIO INC. CARRYING ON BUSINESS AS CANAMEX PROMOTIONS AND NEIL RITCHIE CARRYING ON BUSINESS AS AFFORDABLE PORTABLES
Plaintiffs
- and -
THE CORPORATION OF THE CITY OF MISSISSAUGA
Defendant
CORRECTED DECISION ON COSTS
EMERY J
Released: December 2, 2015
Corrected: December 22, 2015