SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 251/11
DATE: 2015 12 23
RE: MARQUIS NURSERY GARDEN & STONE SUPPLY INC.
Plaintiff
** - and -**
LOBLAW COMPANIES LIMITED
Defendant
COUNSEL: Jonathan Kulathunga and John Paul Venrella, for the Plaintiff
Timothy Morgan, for the Defendant
ENDORSEMENT re costs
(Motion by Plaintiff’s ex-counsel, Speigel Nichols Fox LLP, for a charging order)
MACKENZIE J.
[1] By Endorsement dated November 16, 2015, I granted the motion by former counsel for the plaintiff, Speigel Nichols Fox LLP (SNF) for a charging order against settlement fund in the action, which fund is now held by current counsel for the plaintiff. The charging order expressly provided that it was made without prejudice to the plaintiff’s right to assess the accounts of SNF relating to services rendered to the plaintiff. I further directed that the costs of the motion were to be the subject of written submissions by counsel. I have in the interval received and considered these submissions.
[2] SNF seeks substantial indemnity costs of $11,073.10, alternatively $7,594.11 on a partial indemnity basis.
[3] Counsel for SNF contends costs on a substantial indemnity basis are appropriate here on the ground there was no reason for the plaintiff to resist SNF’s application for a charging order. Counsel points out that SNF prior to plaintiff’s termination of its retainer had procured a valuable settlement for the plaintiff in the amount of $80,000.00 and SNF had agreed to have its accounts assessed, while the settlement fund continued to be under the control of the plaintiff’s new counsel.
[4] In this regard, counsel submits there was no reason for the plaintiff to resist SNF’s motion for a charging order and SNF contends the plaintiff’s opposition to the charging order sought by SNF was without merit.
[5] In aid of its claim for costs on the motion and for their submissions on costs, counsel for SNF cites Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634, (CA), in support of the principle that in determining the amount of a costs award, the court shall fix an amount that is fair and reasonable for the unsuccessful party to pay in light of all the circumstances.
[6] SNF contends its Costs Outline demonstrates the time expended by three of its lawyers and their hourly rates having regard to their respective experiences at the Bar, all in relation to the services described, are reasonable. Counsel emphasizes the factors in Rule 57.0(1) germane to fixing the costs of the motion are items: (e) conduct of the plaintiff which tended to lengthen unnecessarly the conduct of the motion; and (f)(i) the plaintiff’s conduct in moving for production of SNF’s file in the litigation was unnecessary for purposes of the motion. Counsel also points out that while the matter should have been relatively straightforward, the conduct of the plaintiff in failing to adhere to an earlier scheduling order for serving and filing materials on the motion and in serving additional material for the motion at 5:41 p.m. on Friday, November 13, 2015 being the business day before the return date of November 16, 2015, added to the time required of SNF to deal with the motion.
[7] In sum, SNF’s position is that the plaintiff’s conduct rendered a relatively simple motion complex and that an award of substantial indemnity costs is justified.
[8] In response, counsel for the plaintiff makes the following submissions:
(1) The plaintiff acted reasonably in all the circumstances; it did not complicate nor lengthen the proceedings by taking an unreasonable position;
(2) SNF acted unreasonably
(a) in refusing to deliver its retainer file to current counsel until 2 business days before the original return date of the motion on October 16, 2015; and
(b) in opposing the plaintiff’s adjournment request to enable current counsel to review the file.
(3) there has been no reprehensible, scandalous or outrageous conduct by the plaintiff that would justify an award of full indemnity costs;
(4) a costs award should reflect the court’s view of what a fair and reasonable amount to be paid by an unsuccessful party in accordance with Rule 57.01(0.b); and
(5) an appropriate costs award to SNF should be $2,000, plus applicable taxes.
[9] Counsel for the plaintiff argues, among other things, that this court should conclude the judge who granted the adjournment on October 16, 2015 and who stated in her endorsement “I will not award costs today” intended that the costs of the adjournment were for the benefit of the plaintiff and not SNF.
[10] The above words by the judge on October 16, 2015 are clarified by her concluding words in the same paragraph:
I think it should be for the judge who deals with the motion to address costs, dependant on how that matter is decided.
[11] There is no rational basis to now fix costs of the adjournment in the plaintiff’s favour as I am urged by counsel for the plaintiff, and thereby create a credit of sorts against a costs award in favour of SNF.
[12] Counsel further argues that I “should keep in mind” that subsequent to an assessment, [SNF’s] accounts could be significantly reduced, given inter alia that [SNF]:
did not comply with the terms of its retainer with [the plaintiff];
did not render accounts on a timely basis (rendering four accounts over four years); and
billed over 50% of its costs following completion of examinations for discovery.
[13] It is unclear what relevance these arguments have in the disposition of costs in this motion. They may have relevance in the course of the assessment of SNF’s accounts; they have no relevance in disposing of the costs of this motion. I accordingly do not “keep them in mind” in dealing with the costs disposition herein.
[14] I deal now with the award of costs.
[15] I am not persuaded that the conduct of the plaintiff in matters leading up to the motion for the charging order has been such as to attract a costs award on the substantial indemnity basis. I am however persuaded that SNF’s position as it bears on the conduct of the plaintiff is sufficient in all the circumstances to make an award of costs in its favour on a partial indemnity basis.
[16] Further, I am not persuaded the position of the plaintiff that the operation of Rule 57.01(1)(0.b) – costs that an unsuccessful party could reasonably expect to pay – would indicate an appropriate costs award of $2,000 plus HST.
[17] The case law submitted by the plaintiff in support of such position is instructive for the principles governing the exercise of the court’s discretion in fixing costs; the amount of the costs awards in those cases is not dispositive of the amount to be fixed in this case. Although there is no requirement for an unsuccessful party to file its costs outline, not filing a costs outline is a factor to be taken into account when considering the “reasonable expectations” of the unsuccessful party: Smith Estates v. Rotstein (2011), 2011 ONCA 491, 106 O.R. (3d) 161 (CA).
[18] In the result, I award costs to SNF on a partial indemnity basis and fix the same at $7,994.11, comprising $7,594.11, for costs at the motion, and $400.00, for submissions on costs.
[19] The above award shall be paid by the plaintiff to SNF within 30 days from the date of this Endorsement.
MacKenzie J.
Date: December 23, 2015
COURT FILE NO.: 251/11
DATE: 2015 12 23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
RE: MARQUIS NURSERY GARDEN & STONE SUPPLY INC.
Plaintiff
** - and -**
LOBLAW COMPANIES LIMITED
Defendant
COUNSEL: Jonathan Kulathunga and John Paul Venrella, for the Plaintiff
Timothy Morgan, for the Defendant
ENDORSEMENT re costs
(Motion by Plaintiff’s ex-counsel, SpEigel Nichols Fox llp, for a charging order)
MacKenzie J.
Released: December 23, 2015