SUPERIOR COURT OF JUSTICE - ONTARIO

OTTAWA COURT FILE NO.: 12-56265/11-50312

DATE: 2015/12/07

SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN: Mildred McMurtry, Plaintiff (Court file no. 12-56265)

AND

John McMurtry and Mic Mac Realty (Ottawa) Ltd., Defendants

AND BETWEEN: John McMurtry, Plaintiff (Court file no. 11-50312)

AND

Jim McMurtry, Defendant

AND BETWEEN: Jim McMurtry, Plaintiff by Counterclaim (Court file no. 11-50312)

AND

John McMurtry, Brenda McMurtry, Barry Coons, Bouris Wilson LLP and Mic Mac Realty (Ottawa) Ltd., Defendants by Counterclaim

BEFORE: Madam Justice Sylvia Corthorn

COUNSEL: Mark W. Smith for Mildred McMurtry (12-56265)

Jeff Saikaley for John McMurtry (Both actions)

and for Brenda McMurtry (11-50312)

Daniel Mayo for Jim McMurtry (11-50312)

HEARD: By written submissions

RULING AS TO COSTS on preliminary motions

[1] Prior to the commencement of trial in the above-noted actions the defendants, John McMurtry (in both actions) and Brenda McMurtry (in the 2011 action) brought motions for:

a) Leave to amend their respective pleadings; and

b) Adjournment of both trials.

Each of the motions was dismissed and I awarded costs, to be fixed, on a substantial indemnity basis, in any event of the cause, to Mildred McMurtry (in the 2012 action) and Jim McMurtry (in the 2011 action).

[2] Counsel for each of Mildred and Jim delivered submissions in which they:

a) Address the quantum of costs; and

b) Include costs associated with an appearance before R.S.J. McNamara one week prior to trial. On that appearance, John and Brenda requested and were denied adjournments of both the 2011 and 2012 actions.

[3] Counsel for John and Brenda delivered submissions in which they argued that:

a) Costs should be awarded to each of Mildred and Jim on a partial indemnity basis – not on a substantial indemnity basis as was ruled by me at the time of my ruling on the preliminary motions; and

b) Mildred and Jim are not entitled, pursuant to my ruling on the preliminary motions, to their costs of the appearance before R.S.J. McNamara.

[4] I agree with John and Brenda that neither of Mildred nor Jim are entitled, at this time, to their respective costs associated with the appearance before R.S.J. McNamara. The costs of that appearance remain to be determined, unless otherwise agreed upon between the parties, upon resolution by trial or by settlement of the actions.

[5] I am not, however, persuaded by John and Brenda that the scale upon which costs were awarded requires re-consideration. I am also of the view that re-consideration of the scale upon which costs of the preliminary motions were awarded may only be achieved by way of an appeal, including the requirement to seek leave to appeal the order as to costs.

[6] Therefore, this ruling is restricted to fixing costs, on a substantial indemnity basis, for each of Mildred and Jim, on the preliminary motions heard by me on September 14, 2015.

Fixing Costs

a) Mildred McMurtry

[7] Mark Smith, counsel for Mildred, was called to the bar in 1984. A lawyer with 31 years’ experience, his full indemnity hourly rate is $450. I note that Daniel Mayo, counsel for Jim, is also a lawyer with 31 years’ experience. Mr. Mayo’s full indemnity rate is $350. The solicitor-client (full indemnity) rate agreed upon is a matter between counsel and their respective clients. The only matter for my consideration is whether each of the solicitor-client rates is reasonable in the circumstances. I find that Mr. Smith’s hourly rate of $450 is reasonable.

[8] The substantial indemnity rate used in fixing costs payable by John to Mildred is therefore $405 ($450 x 0.6 x 1.5).

[9] The costs to be paid by John to Mildred are calculated as follows:

• The time identified for receipt and review of the motion materials (including a factum) and preparation for the motion, totals 5.3 hours. I find that amount of time to be slightly excessive. Counsel for Jim identified time totalling 5.3 hours for work of the same nature. However, the work on behalf of Jim includes the preparation of an affidavit in Jim’s name and a modest amount of research with respect to the substantive issues. Therefore, I reduce Mr. Smith’s time from 5.3 to 4 hours with respect to work done prior to the attendance on the return of the motions, for fees totalling $1,620.

• A counsel fee for a full day’s attendance, in the amount of $3,500 is claimed. That equates to 8.6 hours based on a substantial indemnity rate of $405 per hour. That amount of time is excessive given that a ‘counsel fee’ typically includes out of court preparation time. I allow 6 hours for in-court time on September 14, 2015 resulting in a counsel fee of $2,430.

• Mildred claims disbursements which relate to the preparation and service of materials relied on before R.S.J. McNamara. Those disbursements do not form part of the costs payable with respect to the motion before me.

[10] In summary, the costs to be paid by John to Mildred are $4,576.50, inclusive of HST ($4,576.50 = ($1,620 + $2,430) x 1.13).

b) Jim McMurtry

[11] Mr. Mayo’s full indemnity rate of $350 per hour is reasonable for a lawyer with 31 years’ experience. The substantial indemnity rate to be used in determining the costs payable by John and Brenda to Jim is therefore $315 ($350 x 0.6 x 1.5).

[12] The costs to be paid by John and Brenda to Jim are calculated as follows:

• The time claimed for preparation for the preliminary motions before me is 5.3 hours. I find that amount of time to be reasonable taking into consideration that affidavit materials were delivered on behalf of Jim and case law was researched and relied on. The fees for the preparatory work are $1,669.50.

• For the reasons set out above in paragraph 9, I allow 6 hours for attendance on the day of the motion for fees of $1,890.

• The disbursements claimed are not allowed because:

➢ The vast majority of them relate to the attendance before R.S.J. McNamara;

➢ I do not allow parking at the Courthouse;

➢ I do not allow mileage from counsel’s office in Carp to the Courthouse; and

➢ The number of pages required for the copies of the affidavit in Jim’s name and the cases relied upon is nominal.

[13] In summary, the costs to be paid by John and Brenda to Jim are $4,056.14, inclusive of HST ($4,022.24 = ($1,669.50 + $1,890) x 1.13).

Deadline for Payment of Costs

[14] In the submissions delivered on behalf of Mildred, reference is made to rule 57.03(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended. It is submitted that the rule gives me “discretion” to order that the costs of the motion be payable within 30 days. I disagree with that submission. I do not have “discretion” in that regard. The wording of the rule is such that it is mandatory for me to order that the costs of the motions be paid within 30 days, “unless the court is satisfied that a different order would be more just”.

[15] In the submissions delivered on behalf of John and Brenda, rule 57.03(1) of the Rules of Civil Procedure is not addressed in any way. There is nothing filed on their behalf which supports a finding that an order other than the one mandated by rule 57.03(1), as to the timing of payment of costs, “would be more just” in the circumstances. As a result, costs are payable no later than 30 days following the date of release of this ruling.

Summary

[16] In summary, the costs are fixed and payable as follows:

a) In Court File No. 12-56265 John McMurtry shall pay to Mildred McMurtry in satisfaction of her costs of the preliminary motions the sum of $4,576.50;

b) In Court File No. 11-50312 John McMurtry and Brenda McMurtry, collectively, shall pay to Jim McMurtry in satisfaction of his costs of the preliminary motions the sum of $4,022.24; and

c) The amounts referred to in paragraphs (a) and (b) above shall be paid no later than 30 days following the date of release of this ruling.

Date: December 7, 2015

Justice S. Corthorn

OTTAWA COURT FILE NO.: 12-56265/11-50312

DATE: 2015/12/07

SUPERIOR COURT OF JUSTICE – ONTARIO

Court File No. 12-56265

BETWEEN: Mildred McMurtry, Plaintiff

AND

John McMurtry and Mic Mac Realty (Ottawa) Ltd., Defendants

Court File No. 11-50312

AND BETWEEN: John McMurtry, Plaintiff

AND

Jim McMurtry, Defendant

AND BETWEEN: Jim McMurtry, Plaintiff by Counterclaim

AND

John McMurtry, Brenda McMurtry, Barry Coons, Bouris Wilson LLP and Mic Mac Realty (Ottawa) Ltd., Defendants by Counterclaim

BEFORE: Madam Justice Sylvia Corthorn

COUNSEL: Mark W. Smith for Mildred McMurtry

Jeff Saikaley for John McMurtry and Brenda McMurtry

Daniel Mayo for Jim McMurtry

RULING AS TO COSTS

Justice S. Corthorn

Released: December 8, 2015