CITATION: Frame, et al. v. Watt, et al., 2016 ONSC 1503
COURT FILE NO.: 52581/10
DATE: 2016/03/03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHERYL FRAME and MEGAN MORRISON
Lucianna Saplywy, for the Plaintiffs
Plaintiffs
- and -
BRYAN WATT, BRUCE E. SMITH LTD., VINCENZO MALATESTA, DUFFERIN CONSTRUCTION COMPANY and HOLCIM (CANADA) INC.
Stephen G. Ross, for the Defendants/Moving Parties, Bryan Watt and Bruce E. Smith Ltd.
Martin P. Forget, for the Defendants, Vincenzo Malatesta, Dufferin Construction Company and Holcim (Canada) Inc.
Defendants
The Honourable Mr. Justice J.R. Henderson
COSTS ENDORSEMENT
[1] Bryan Watt and Bruce E. Smith Ltd. (hereinafter called "the Watt Defendants") unsuccessfully brought a Rule 20 motion for summary dismissal of all claims and all cross-claims against the Watt Defendants.
[2] As the successful parties on the motion, I find that the Plaintiffs and the Malatesta Defendants (Vincenzo Malatesta, Dufferin Construction Company and Holcim (Canada) Inc.) are entitled to their costs.
[3] Although the motion was unsuccessful, I find that it was neither frivolous nor vexatious. I also do not accept the suggestion that the timing of the motion was ill-advised. Therefore, I find that costs should be awarded on a partial indemnity scale.
[4] Regarding quantum, I find that the motion was exceedingly complex as it involved a review and interpretation of expert evidence on both the scientific and human factors that were involved in a three vehicle collision. The Watt Defendants delivered two lengthy experts' reports in support of the motion. This compelled the Plaintiffs to retain two experts to provide their own lengthy reports. There was little agreement between the experts on the significant issues.
[5] In assessing the costs of preparing for the motion I will take into account the fact that the documentary disclosure was substantial, and the fact that the cross-examinations took place on three different dates in three different cities.
[6] As to the presentation in court, I find that all sides attempted to present their arguments in a fair and efficient manner. Given the complexity of the case, it was obvious that all counsel had spent a considerable amount of time preparing for the motion.
[7] I find that Plaintiffs' counsel took the lead in defending the summary dismissal motion, and therefore the Plaintiffs' costs for preparation for the motion are higher than the preparation costs of the Malatesta Defendants.
[8] Regarding the fees and disbursements claimed by the Plaintiffs, I will allow a counsel fee on the motion in the amount of $2,000.00. I will also allow a fee for preparation for the motion, including all examinations, discovery, cross-examinations and other preparation. In that respect, I note that the preparation time for the motion was shared between senior and junior counsel. I will allow a total of 60 hours preparation time at an average partial indemnity hourly rate of $150.00 per hour for a total of $9,000.00. Accordingly, the total fee allowed to the Plaintiffs will be $11,000.00 plus HST for a total of $12,430.00.
[9] Regarding the Plaintiffs' disbursements, I note that the cost of the experts' reports in the amount of $15,805.45 is by far the highest single disbursement. In my view, these experts' reports were necessary for the Plaintiffs' case in any event. That is, although the Plaintiffs' experts' reports were useful and important for this summary dismissal motion, the experts' reports form part of the Plaintiffs' case that will be presented at trial. Therefore, this disbursement is not a proper disbursement for this Rule 20 motion. Disbursements for experts' reports for the experts who will testify at trial are properly assessable by the trial judge.
[10] Accordingly, I will allow the Plaintiffs' claim for disbursements, but I will subtract the amount of these experts' reports. Therefore, disbursements to the Plaintiffs will be allowed in the sum of $3,366.98 plus HST of $437.70 for a total of $3,804.68.
[11] Regarding the Malatesta Defendants, I will allow a counsel fee on the motion in the amount of $2,000.00 and I will allow another fee for all preparation time in the amount of $5,000.00. Therefore, the total fee allowed will be $7,000.00 plus HST of $910.00 for a total of $7,910.00. In addition, I will allow the Malatesta disbursements in the amount of $333.83.
[12] In summary, it is ordered and adjudged that the Watt Defendants are to pay to the Plaintiffs their costs of this motion fixed at $16,234.68. Further, it is ordered and adjudged that the Watt Defendants are to pay to the Malatesta Defendants their costs of this motion fixed at $8,243.83. Both of these sums are payable within 30 days.
Henderson J.
Released: March 3, 2016
CITATION: Frame, et al. v. Watt, et al., 2016 ONSC 1503
COURT FILE NO.: 52581/10
DATE: 2016/03/03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHERYL FRAME and MEGAN MORRISON
Plaintiffs
- and -
BRYAN WATT, BRUCE E. SMITH LTD., VINCENZO MALATESTA, DUFFERIN CONSTRUCTION COMPANY and HOLCIM (CANADA) INC.
Defendants
COSTS ENDORSEMENT
Henderson J.
Released: March 3, 2016