CITATION: Schellings v. DTE Industries Limited, 2016 ONSC 1439
COURT FILE NO.: 12-55685
DATE: 2016/02/29
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ROBERT SCHELLINGS and CATHERINE SCHELLINGS, Plaintiffs
AND
DTE INDUSTRIES LIMITED and W.O. STINSON & SON LIMITED, Defendants
BEFORE: Aitken J.
COUNSEL: Pierre Champagne and Julie Paquette, Counsel for the Defendant W.O. Stinson & Son Limited
Shane D’Souza and Jagtaran Singh, Counsel for the Plaintiffs
HEARD: January 27, 2016 (at Ottawa)
ENDORSEMENT RE COSTS
[1] The motion for leave to appeal the order of Roger J., dated October 21, 2015, brought by the Defendant, W.O. Stinson & Son Limited (“Stinson”), was dismissed. The order of Roger J. granted the Plaintiffs leave to amend their Statement of Claim and required Stinson to answer questions improperly refused at the examination for discovery of its representative. The Plaintiffs now seek their costs in regard to the motion for leave to appeal on a partial indemnity basis in the amount of $7,672.26. Stinson takes the position that a costs award in the amount of $3,500 would be fair and reasonable in all of the circumstances of this case. I agree.
[2] The motion for leave to appeal was brought in writing. The Plaintiffs’ counsel did not need to travel to Ottawa from Toronto, prepare oral arguments, or attend a hearing.
[3] The legal principles relied on by Roger J. in rendering his decision were not in dispute. All that was in dispute before Roger J., and before this court, was the application of those principles to the facts of this case. Similarly, there was no dispute before this court as to the relevant legal principles to be applied on a motion for leave to appeal to the Divisional Court.
[4] The motion for leave to appeal was not complex and focused only on r. 62.02(4)(b) of the Rules of Civil Procedure, R.R.O. 190, Reg. 194. It required the court to consider very discrete points.
[5] I find the number of hours docketed by the Plaintiffs’ counsel (35.1 by junior counsel and 7.2 by senior counsel) to the task of preparing a factum and book of authorities for the motion for leave to appeal to be excessive in the context of this case, as much of the required material was available from the documents put before Roger J. at the time of the original motion. As well, an hourly rate of $250 for a 2014 call to the bar, resulting in a partial indemnity rate of $150, is a bit high, considering the work for the leave motion was done in 2015.
[6] The overall objective in fixing costs is to fix an amount that is fair and reasonable. One relevant factor in determining what is reasonable is what the unsuccessful party could reasonably expect to pay in the particular proceeding (Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at paras. 37-38).
[7] In considering the reasonable expectations of Stinson regarding liability for costs when bringing its motion for leave to appeal, two points must be noted: (1) Roger J. ordered costs of $6,000 against Stinson in regard to the original motion regarding an amendment of the Statement of Claim and refusals. There was an oral hearing before Roger J., and the Plaintiffs’ Toronto counsel had to attend the hearing in Ottawa, and (2) it has been held in a number of cases that the range of costs awards for motions for leave to appeal to the Divisional Court in cases of average complexity is from $3,500 to $5,000 (Brown v. Hudson’s Bay Co., 2014 ONSC 5079, 325 O.A.C. 61, at paras. 62-66; Abrams v. Abrams, 2009 23375 (Ont. Div. Ct.), at para. 20; Fernicola (In Trust) v. Creview Development Inc. (2009), 80 R.P.R. (4th) 178 (Ont. Div. Ct.), at para. 15). It would have been reasonable for Stinson to expect that a costs award in this case would have been in the vicinity of $3,500.
[8] Taking these factors into account, I order the Defendant Stinson to pay the Plaintiffs their costs on the motion for leave to appeal fixed in the amount of $3,500 inclusive of disbursements and HST.
Aitken J.
Date: February 29, 2016
CITATION: Schellings v. DTE Industries Limited, 2016 ONSC 1439
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: ROBERT SCHELLINGS and CATHERINE SCHELLINGS, Plaintiffs
AND
DTE INDUSTRIES LIMITED and W.O. STINSON & SON LIMITED, Defendants
BEFORE: Aitken J.
COUNSEL: Pierre Champagne and Julie Paquette, Counsel for the Defendant W.O. Stinson & Son Limited
Shane D’Souza and Jagtaran Singh, Counsel for the Plaintiffs
ENDORSEMENT RE COSTS
Aitken J.
Released: February 29, 2016