CITATION: J.M.B. Cattle Corp. v. 2144032 Ontario Inc., 2016 ONSC 2150
COURT FILE NO.: 15-086 (Owen Sound)
DATE: 2016-03-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
J.M.B. CATTLE CORP.
Applicant
Respondents
Applicant
Peter T. Fallis and Alexandra Ferrier, for the Applicant
- and -
2144032 ONTARIO INC. &
THOMAS KAUFMAN, ESTATE TRUSTEE OF THE ESTATE OF WILLIAM H. KAUFMAN
Judy Fowler Byrne, for the Respondents
Respondents
HEARD: July 9, 2015,
at Owen Sound, Ontario
APPLICATION UNDER:
Courts of Justice Act, R .S. O. 1990 Chap. C. 43
Rules of Civil Procedure, R.R.O 1990, O. Reg. 194
Price J.
Costs Endorsement
NATURE OF PROCEEDING
[1] When the Municipal Planning Board in Parry Sound refused J.M.B. Cattle Corp.’s (“JMB”) application for severance of property that JMB had agreed to buy from 2144032 Ontario Inc. (“214”) and the Estate of William H. Kaufman (“the Estate”) from other property owned by the Estate, and the sellers refused to extend the deadline for severance approval contained in the Agreement of Purchase and Sale (“APS”), JMB applied to this court for a declaration that it alone had a right to terminate the APS. Pending the hearing of its application, JMB obtained a Certificate of Pending Litigation, preventing the sellers from selling the property to anyone else.
[2] Following a hearing, the court found that:
(a) The APS was a valid and binding contract.
(b) The APS imposed a deadline of March 10, 2015, for JMB to obtain severance approval, and the sellers were within their rights in refusing JMB’s request to extend that deadline.
(c) JMB was not entitled to insist unilaterally that the property not be sold to anyone else until it had exhausted its rights of appeal from the planning board’s decision.
(d) The sellers were not estopped from terminating the APS.
(e) JMB had no interest in the property that entitled it to a Certificate of Pending Litigation.
[3] The parties were unable to agree on the costs of the application. This endorsement addresses that issue.
ISSUES
[4] The court must determine whether JMB should pay the costs of 214 and the Estate and, if so, the amount of those costs.
POSITIONS OF THE PARTIES
[5] 214 and the Estate claim their costs in the amount of $15,859.77. They base their claim on a calculation of their costs on a partial indemnity scale to the date when they served an Offer to Settle on JMB, and of their costs on a substantial indemnity scale from that date forward. JMB does not dispute the right of 214 and the Estate to an award of costs, but submits that the costs claimed are excessive, and that 214 and the Estate should be disqualified from being awarded any costs on a substantial indemnity scale by reason of what it characterizes as “the growing despication and distain (sic) that [they] have for [JMB]”, as evidenced, it says, by their failure to support JMB’s application for severance.
ANALYSIS AND LAW
a) General principles
[6] The court’s determination of costs is governed by section 131 of the Courts of Justice Act,[^1] and by Rule 57.01 of the Rules of Civil Procedure.[^2] Section 131 provides for the general discretion to fix costs. Rule 57.01 provides guidance as to the exercise of that discretion, by enumerating certain factors that the court may consider when assessing costs.
[7] Among the factors set out in Rule 57.01(1) are the following:
(i) The complexity of the proceeding;
(ii) The importance of the issues;
(iii) The conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(iv) Any offers to settle;
(v) The principle of indemnity;
(vi) The concept of proportionality, which includes at least two factors:
(a) The amount claimed and the amount recovered in the proceeding; and,
(b) The amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
(vii) Any other matter relevant to the question of costs.
[8] Justice Perell summarized the purposes of costs orders in 394 Lakeshore Oakville Holdings Inc. v. Misek, in 2010. He stated:
Modern costs rules are designed to advance five purposes in the administration of justice: (1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences; (4) to discourage the sanctioning of inappropriate behaviour by litigants in their conduct of the proceedings; and (5) to encourage settlements.[^3] (internal citations omitted).
[9] The court's role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As the Court of Appeal pointed out in Boucher et al. v. Public Accountants Council for the Province of Ontario, in 2004, the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings rather than an exact measure of actual costs to the successful litigant.[^4]
[10] In reviewing a claim for costs, the court does not undertake a line by line analysis of the hours claimed, and should not second-guess the amount claimed, unless it is clearly excessive or overreaching. It considers what is reasonable in the circumstances and, taking into account all the relevant factors, awards costs in a global fashion.[^5]
[11] Ultimately, in determining the amount of costs to be awarded, the court applies fairness and reasonableness as overriding principles. It does not engage in a mechanical exercise but, rather, takes a contextual approach, applying the principles and factors discussed above, and setting a figure that is fair and reasonable in all the circumstances. Rule 1.04(1.1) requires the court to consider proportionality; that is, the amount of costs ordered should be proportional to the amount of money and other interests at stake in the proceeding.
[12] The general rule is that costs follow the event and will be awarded on a partial indemnity scale.[^6] In special circumstances, costs may be withheld from the successful party or be ordered to be paid to the unsuccessful party, and the scale of costs may be higher, but those cases are exceptional and generally involve circumstances where one party to the litigation has behaved in an abusive manner, brought proceedings wholly devoid of merit, and/or has unnecessarily run up the costs of litigation.[^7]
b) Entitlement to costs
Reasonableness and offers to settle
[13] As noted above, the general rule is that costs follow the event, and are awarded on a partial indemnity scale.[^8] In special circumstances, costs may be awarded on a higher scale, but those cases are exceptional and generally involve circumstances where one party to the litigation has behaved in an abusive manner, brought proceedings wholly devoid of merit, and/or unnecessarily run up the costs of the litigation.[^9]
[14] None of the parties in the present case engaged in conduct so unreasonable as to justify depriving 214 and the Estate of the costs to which they are presumptively entitled or, apart from considerations arising from offers to settle, that entitle them to recover costs on a higher than usual scale. JMB’s application was unsuccessful but was not wholly devoid of merit. It raised legitimate issues to be determined, and it cannot reasonably be said that it should have been able to predict the outcome from the outset.
[15] On June 15, 2014, 214 and the Estate served an Offer to settle on JMB pursuant to Rule 49.10. They offered to settle the proceeding by agreeing to a dismissal of the application and a discharge of the Certificate of Pending Litigation without costs. Had JMB accepted that offer, the parties would not have had to expend further legal costs, and 214 and the Estate would not have been further delayed in selling their property. The offer was not accepted, and 214 and the Estate eventually obtained an outcome that was as favourable as the one that would have resulted from acceptance of their offer. On this basis, 214 and the Estate are entitled to their costs from the date they served their offer onward on a substantial indemnity scale.
Indemnification - The hourly rates charged
[16] In determining the appropriate hourly rates to be applied to the time spent by the lawyers for 214 and the Estate, the court follows the approach taken by Aitkin J. in Geographic Resources.[^10] That is, the starting point is the successor of the Costs Grid, namely, the “Information for the Profession” bulletin from the Costs Sub-Committee of the Rules Committee (the “Costs Bulletin”), which can be found immediately before Rule 57 in the Carthy or Watson & McGowan edition of the Rules, which sets out maximum partial indemnity hourly rates for counsel of various levels of experience.
[17] The Costs Bulletin suggests maximum hourly rates (on a partial indemnity scale) of $80 for law clerks, $225 for lawyers of less than 10 years’ experience, $300 for lawyers of between 10 and 20 years’ experience, and $350 for lawyers with 20 years’ experience or more.[^11] The upper limits in the Costs Bulletin are generally intended for the most complex and important of cases.
[18] 214 and the Estate acknowledge that the issues in the application were not very complex. The main issue was the interpretation of the Agreement of Purchase and Sale following a series of changes made in the exchange of offers and counter-offers, and whether JMB was entitled to prevent the sale of the property until it had exhausted its appeals from the planning board’s refusal of its application for severance, or whether its rights ended with the deadline contained in the APS for obtaining final severance approval.
[19] The Costs Bulletin, published in 2005, is now dated. Aitkin J. considered adjusting the Costs Subcommittee’s hourly rates for inflation, as Smith J. did in First Capital (Canholdings) Corp. v. North American Property Group,[^12] but the unadjusted rates of the lawyers in her case were only slightly less than the actual fees they charged, so she elected to use their unadjusted rates. Normally, however, it is appropriate to adjust the hourly rates in the Costs Bulletin to account for inflation since 2005.
[20] Based on the Bank of Canada Inflation Calculator, available online at http://www.bankofcanada.ca/rates/related/inflation-calculator/, the 2015
equivalent of the hourly rates in the Costs Bulletin are $94.43 for law clerks, $265.60 for lawyers of under 10 years’ experience, $354.13 for lawyers of between 10 and 20 years’ experience, and $413.15 for lawyers of over 20 years’ experience.
[21] The court is guided by the rates in the Costs Bulletin, not the actual hourly rates charged. The Costs Subcommittee’s rates apply to all lawyers and all cases, so everyone of the same level of experience starts at the same rate. The actual rates charged are relevant only as a limiting factor, in preventing the costs awarded from exceeding the actual fees charged.
[22] The court adjusts the total fees arrived at by applying the inflation-adjusted hourly rates of the lawyers to the time spent, to reflect unique features of the case, including the complexity of the proceeding, the importance of the issues, and the other factors set out in Rule 57.01(1). If an excessive amount of time was spent, or too many lawyers worked on the file, the court reduces the resulting amount of fees accordingly. As long as the resulting amount does not exceed the amount actually charged to the client, the actual fee that the client agreed to pay is irrelevant.
[23] Judy Byrne, the principal lawyer for 214 and the Estate, was called to the Bar in Ontario in 1994. She had practiced law for 21 years when this application was heard. Based on the Costs Bulletin, adjusted for inflation, she was entitled to claim a maximum hourly rate of $413.15, on a partial indemnity scale, for the time she spent on the case in 2015. She claims $225. I find this to be conservative.
[24] Ms. Byrne was assisted by Stephen Cameron, who was called to the Bar in 1968, Andrew Roth, who was called in 2004, and Maseeh Sidky, who was called in 2013. They had practiced law for 47 years, 11 years, and 2 years, respectively, when the application was heard. Their maximum inflation-adjusted hourly rates, according to the Costs Bulletin, were $413.15 for Mr. Cameron, $354.13 for Mr. Roth, and $265.60 for Mr. Sidky, respectively. Mr. Roth claims $200 and Mr. Sidky claims $225. Again, I find these rates to be conservative.
[25] 214 and the Estate claim their costs from the date of service of their Offer to Settle on a substantial liability scale. Rule 49.10 provides:
49.10(2) Where an offer to settle,
(a) is made by a defendant at least seven days before the commencement of the hearing;
(b) is not withdrawn and does not expire before the commencement of the hearing; and
(c) is not accepted by the plaintiff,
and the plaintiff obtains a judgment as favourable as or less favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer was served and the defendant is entitled to partial indemnity costs from that date, unless the court orders otherwise.
[26] Rule 57.01 provides, in part:
57.01(4) Nothing in this rule or rules 57.02 to 57.07 affects the authority of the court under section 131 of the Courts of Justice Act,
(a) to award or refuse costs in respect of a particular issue or part of a proceeding;
(b) to award a percentage of assessed costs or award assessed costs up to or from a particular stage of a proceeding;
(c) to award all or part of the costs on a substantial indemnity basis;
(d) to award costs in an amount that represents full indemnity; or
(e) to award costs to a party acting in person.
[27] The Court of Appeal, in S. & A. Strasser Ltd. v. Richmond Hill (Town), in 1990, appeared to suggest that in cases where a successful defendant had made a prior offer to settle, Rules 49.13 and 57.01 could operate to permit the award of partial indemnity costs prior to the offer and substantial indemnity costs thereafter.[^13] A number of cases followed this principle.[^14]
[28] The Court of Appeal later clarified the principles set out in Strasser. In Davies v. Clarington (Municipality), in 2009,[^15] Epstein J.A. noted that Austin J.A. had restricted Strasser’s broad nature in Scapilliti v. A. Potvin Construction Ltd., in 1999,[^16] and appeared to indicate that substantial indemnity costs against an unsuccessful plaintiff (or applicant) was justified only when that party was found to have conducted himself in an egregious manner.
[29] To end any doubts on the issue, Epstein J.A. stated, in Davies v. Clarington (Municipality):
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 Scapilliti, Strasser should be interpreted to fit within this framework - as a case where the trial judge implicitly found such egregious behaviour, deserving of sanction.[^17]
[30] Justice Brown, in 3574423 Canada Inc. v. Baton Rouge Restaurants Inc., in 2012, stated:
Although Rule 49.10(2) of the Rules of Civil Procedure does not speak in terms of awards of substantial indemnity costs to defendants who “better” their offers to settle when the plaintiff’s action is dismissed, the BRRC Defendants submit that the case law entitles a court to make such a discretionary award. Yes and no. The decision of the Court of Appeal in St. Elizabeth Home Society v. Hamilton (City) re-iterated that substantial indemnity costs are only awarded in “rare and exceptional cases”, and that it would be an error for a trial judge to rely on offers to settle to award successful defendants substantial indemnity costs absent conduct by a plaintiff which supported a finding of reprehensible conduct.[^18] As I stated above, I do not regard the conduct of the plaintiff as egregious or reprehensible, therefore I see no basis for an award of substantial indemnity costs in favour of the defendants.[^19]
[31] Justice Matheson came to a similar conclusion in Harte-Eichmanis v. Fernandes, in 2012.[^20] It seems to this court that Rule 49.10, as interpreted above, favours plaintiffs/applicants and diminishes the court’s ability to reward the efforts of defendants/respondents to settle proceedings by making timely offers to settle. While the expansion of the court’s discretion in family law cases, reflected in cases such as Osmar v. Osmar, in 2000,[^21] and Sordi v. Sordi, in 2001,[^22] which recognize a continuum of costs orders, from the awarding of nominal costs to the awarding of full indemnity costs, may permit the court in such cases to award costs on a substantial indemnity scale to reward timely offers to settle and punish the conduct of a party who unreasonably refuses an offer to settle, and to employ an award of costs on a full indemnity scale to punish truly egregious conduct, such as intentionally misleading the court or making scandalous accusations against the court or officers of the court, a similar approach by the court in civil actions appears to require the consideration of a change in Rule 49.10 by the Rules Committee.
[32] Rule 1 of the Rules of Civil Procedure defines substantial indemnity costs as meaning "costs awarded in an amount that is 1.5 times what would otherwise be allowable in accordance with Part I of Tariff A" - i.e. 1.5 times the partial indemnity rate.[^23] Costs calculated on a substantial indemnity scale, obviously, represent something less than full indemnity.
[33] On a substantial indemnity scale, the maximum inflation-adjusted hourly rates of the lawyers for 214 and the Estate are $620 for Ms. Byrne and Mr. Cameron ($413.15 x 1.5), $531 for Mr. Roth ($354.13 x 1.5), and $398.40 for Mr. Sidky ($265.60 x 1.5). While 214 and the Estate, on the authority of St. Elizabeth Home Society v. Hamilton (City), are not entitled to claim these rates for their lawyers, they should be entitled to their lawyers’ adjusted hourly rates on a partial indemnity scale.
[34] Given that Ms. Byrne had 21 years’ experience, and that the maximum rate for lawyers with 15 to 20 years’ experience is $354.13, and the maximum rate for lawyers with over 20 years’ experience is $413.15, I allow her rate at $370. Given that Mr. Roth had 11 years’ experience, I allow his rate at $270, being $10 above the maximum rate for lawyers with under 10 years’ experience. Given that Mr. Sidky had 2 years’ experience, I allow his rate at $165 per hour, being $70 above the maximum allowed for a law clerk and $100 less than the maximum rate of $265.60 allowed for lawyers with under 10 years’ experience.
[35] JMB submits that the claim for Ms. Byrne’s fees for 16.2 hours spent by her in the preparation of motion materials, legal research, and drafting a factum and Offer to Settle is excessive and should be reduced to 12 hours, that her travel time from Toronto to Owen Sound should be reduced to 7.5 hours, and that the .4 hours spent by Mr. Cameron in the preparation of argument of the application and motion was unnecessary, and that the additional time claimed for the filing of a copy of the respondents’ factum should be disallowed.
[36] JMB did not submit a Costs Outline setting out the time that its own lawyer spent on the application. The court is therefore unable to compare the time spent by JMB’s lawyer with the time spent by the lawyers of 214 and the Estate on any given task in order to assess the reasonableness of the time spent by the latter.
[37] This court has held, on several occasions, that when one party attacks another’s costs as excessive, but does not put its own dockets before the court, the attack “is no more than an attack in the air.” In Risorto v. State Farm Mutual Automobile Insurance Co., in 2003, Winkler J., then a motion judge, stated:
The attack on the quantum of costs, insofar as the allegations of excess are concerned, in the present circumstances is no more than an attack in the air. I note that State Farm has not put the dockets of its counsel before the court in support of its submission. Although such information is not required under Rule 57 in its present form, and the rule enumerates certain factors which would have to be considered in exercising the discretion with respect to the fixing of costs in any event, it might still provide some useful context for the process if the court had before it the bills of all counsel when allegations of excess and “unwarranted over-lawyering” are made. In that regard, the court is also entitled to consider “any other matter relevant to the question of costs”. (See Rule 57.01(1)(i). In my view, the relative expenditures, at least in terms of time, by adversaries on opposite sides of a motion, while not conclusive as to the appropriate award of costs, is still, nonetheless, a relevant consideration where there is an allegation of excess in respect of a particular matter.[^24] [Emphasis added.]
[38] For this reason, I am not prepared to reduce the time claimed by the lawyers for 214 and the Estate except for the time claimed for travel, which involves considerations of principle.
[39] As for the appropriate hourly rate, courts have not been unanimous as to whether counsel’s hourly rates should be allowed, denied, or reduced, for travel time. Spies J., in Rosen v. Slovan-Rosen, (2010) held that travel time should not be included in recoverable costs on a partial indemnity scale.[^25] Zisman J., in the Ontario Court, came to the same conclusion in Wilson v. Marchand, (2007).[^26] While other judges have allowed costs for travel time, they have differed as to whether counsel’s hourly rates should be reduced for such time. Their difference of opinion on this issue is evident in Gatta v. The Corporation of the City of St. Catharines, (2010). In that case, Taliano J. stated:
Counsel for the plaintiff takes the position that travel time should not be permitted. Counsel for the defendant relies on Mallory v. Mallory, 1998 29653 (ON SC), [1998] O.J. No 41 where my learned colleague, Quinn J., held that travel time should not only be permitted but should be allowed at counsel’s full chargeable hourly rate without discount since counsel while travelling, “is representing his/her client to the exclusion of all other clients and their needs.” He went on to conclude that to discount counsel’s hourly rate would ignore the harsh fiscal reality of the business of law. My view is that, although travel time which is necessary to the performance of counsel’s duties should be compensable, the rate of compensation should be reduced to reflect the fact that the litigator’s skills are not generally engaged during travel time. That being the case, a lower rate of compensation is more appropriate. In this case, I would allow travel time at 50% of the substantial indemnity rate and I would therefore reduce the full indemnity bill by $4,219.[^27]
[40] The weight of authority favours a reduction of counsel’s hourly rate for travel time by 50%, at least where costs are awarded on a partial indemnity scale. Orkin, in The Law of Costs, states:
Where a solicitor’s retainer requires him to travel on behalf of the client he is not entitled to be paid at the same rate for traveling time as he is for solicitor’s work….Full rates charged for traveling time have been reduced on assessment, either by a reduction in the amount of time to be allowed or by allowing the full amount of time recorded but reducing the rate substantially below the solicitor’s normal billing rates….”[^28]
[41] It is common practice for courts to reduce counsel’s hourly rate for travel. Arrell J., in awarding partial indemnity costs in The Corporation of the City of Brantford v. Montour, (2013), allowed travel time but found that “full rates” should not be allowed for it.[^29] Flynn J. allowed travel time at half of counsel’s regular partial indemnity hourly rate in Paonessa v. Armstrong, (2003),[^30] as did Pierce J. in MacRae v. Santa, (2003),[^31] Sproat J., in Daurio v. Cameron, (2005),[^32] and Wein J., in Fraser v. UBS, (2012).[^33]
[42] Based on these authorities, I am reducing the hourly rate applied to Ms. Byrne’s travel time, at 3.5 hours, being the time that JMB attributes to reasonable travel time from Toronto to Owen Sound and return, to half Ms. Byrne’s maximum hourly rate on an inflation-adjusted partial indemnity scale.
Other factors - Disbursements
[43] It further submits that the disbursement of $215.71 claimed for service of the Notice of Termination of Seller, should be disallowed on the ground that it was not an expense related to the application. I agree, and would disallow this disbursement. The remaining disbursements of $772.83 are not disputed. I find those disbursements to be reasonable and would allow them at the amounts claimed.
Proportionality and the reasonable expectation of the unsuccessful parties
[44] Based on the foregoing, the costs of 214 and the Estate would be as follows:
A. Roth: 2 hrs x $270 = $540.00
J. Byrne: 33.7 hrs (37.2 – 3.5 travel) x $370 = $12,469.00
3.5 hrs travel x $185 = $647.50
M. Sidky: 8 hrs x $165 = $1,320.00
S. Cameron: 1.2 hrs x $413.15 = $495.78
Total: $15,472.28
HST on fees: (13%): $2,011.40
Disbursements: $772.83
HST on taxable disbursements (13% x 543.83): $70.70
Total Fees and Disbursements (inclusive of HST): $18,327.21
[45] It would not be fair to award costs to 214 and the Estate in an amount that exceeds the amount they claim. However, based on the fact that, as I find, 214 and the Estate would be entitled to costs, even on a partial indemnity scale, exceeding those they have claimed, I am allowing their costs in the amount they have claimed, although based on a different rationale than they advance in their submissions.
[46] The costs claimed by 214 and the Estate are proportional to the amounts that were at stake in the application, which concerned a property that JMB had sought to purchase for $800,000. The amount is also within the range of what JMB should reasonably have expected to pay if unsuccessful, and was likely similar to the costs that it incurred itself, based on the time that its lawyer, Peter T. Fallis, would have to have spent, and his experience (called to the Bar in Ontario in 1971).
CONCLUSION AND ORDER
[47] For the foregoing reasons, it is ordered that:
- JMB shall pay to 2144032 Ontario Inc. and Thomas Kaufman, Estate Trustee of the Estate of William H. Kaufman, their costs in the amount of $15,859.77, inclusive of fees, disbursements, and H.S.T., payable forthwith.
Price J.
Released: March 30, 2016
CITATION: J.M.B. Cattle Corp. v. 2144032 Ontario Inc., 2016 ONSC 2150
COURT FILE NO.: 15-086 (Owen Sound)
DATE: 2016-03-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
J.M.B. CATTLE CORP.
Applicant
- and -
2144032 ONTARIO INC. &
THOMAS KAUFMAN, ESTATE TRUSTEE OF THE ESTATE OF WILLIAM H. KAUFMAN
Respondents
COSTS ENDORSEMENT
Price J.
Released: March 30, 2016
[^1]: Courts of Justice Act, R.S.O. 1990 c. C.43
[^2]: Rules of Civil Procedure, RRO 1990, Reg 194
[^3]: 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, [2010] O.J. No. 5692 (S.C.J.), para. 10
[^4]: Boucher et al. v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), 2004 ONCA 14579 (), 71 O.R. (3d) 291, [2004] O.J. No. 2634, (Ont. C.A.)
[^5]: See the cases referenced in Fazio v. Cusumano 2005 33782 (ON SC), 2005 CarswellOnt 4518 (S.C.J.), at para. 8.
[^6]: Bell Canada v. Olympia & York Developments Limited et. al. (1994), 1994 239 (ON CA), 1994 ONCA 239 (), 17 O.R. (3d) 135 (C.A.)
[^7]: Standard Life Assurance Company v. Elliott (2007), 2007 18579 (ON SC), 86 O.R. (3d) 221 (S.C.J.)
[^8]: Bell Canada v. Olympia & York Developments Limited et. al. (1994), 1994 239 (ON CA), 1994 ONCA 239 (), 17 O.R. (3d) 135 (C.A.)
[^9]: Standard Life Assurance Company v. Elliott (2007), 2007 18579 (ON SC), 86 O.R. (3d) 221 (S.C.J.)
[^10]: Geographic Resources Integrated Data Solutions Ltd. v. Peterson, 2013 ONSC 1041, paras. 7 and 11 to 16
[^11]: “Information for the Profession” bulletin (“the Costs Bulletin”) from the Costs Sub-Committee of the Rules Committee (that the Costs Sub-Committee of the Rules Committee issued to replace the Costs Grid, which it repealed in 2005). The Costs Bulletin has advisory status only and not statutory authority, as it was not included in the Regulation that repealed the Costs Grid.
[^12]: First Capital (Canholdings) Corp. v. North American Property Group, 2012 ONSC 1359, 2012 ONSC 1359 (S.C.J.)
[^13]: S. & A. Strasser Ltd. v. Richmond Hill (Town) (1990), 1990 6856 (ON CA), 1 O.R. (3d) 243 (C.A.)
[^14]: H.L. Staebler Company Ltd. v. Allan (2008), 2008 64396 (ON SC), 92 O.R. (3d) 788 (S.C.J.); Dunstan v. Flying J Travel Plaza, 2007 819 (ON LRB), [2007] O.J. No. 4089 (S.C.J.); Alie v Bertrand & Frere Construction Co. (2002), 62 O.R. (3d) 645.
[^15]: Davies v. Clarington (Municipality),2009 ONCA 722
[^16]: Scapilliti v. A. Potvin Construction Ltd. (1999), 1999 1473 (ON CA), 44 O.R. (3d) 737 (C.A.)
[^17]: Davies v. Clarington (Municipality), para. 40
[^18]: St. Elizabeth Home Society v. Hamilton (City), 2010 ONCA 280, para. 90
[^19]: 3574423 Canada Inc. v. Baton Rouge Restaurants Inc., 2012 ONSC 296, para. 8
[^20]: Harte-Eichmanis v. Fernandes, 2012 ONSC 2079, para. 16
[^21]: Osmar v. Osmar, 2000 20380 (ON SC), [2000] O.J. No. 2504, 8 R.F.L. (5th) 387 (Ont. S.C.J.)
[^22]: Sordi v. Sordi, [2001] O.J. No. 4681, 2011 ONCA 665 (Ont. C.A.) ()
[^23]: See Hanis v. University of Western Ontario, 2006 23155 (ON SC), [2006] O.J. No. 2763 (Ont. S.C.), per Power J.
[^24]: Risorto v. State Farm Mutual Automobile Insurance Co. (2003), 2003 43566 (ON SC), ONSC 43566 (), 64 O.R. (3d) 135, at para. 10 (S.C.), per Winkler J., cited in Springer v. Aird& Berlins LLP (2009), 2009 26608 (ON SC), 2009 ONSC 26608 (), 74 C.C.E.L.(3d) 243 (Ont. S.C.), at paras. 10-17.
[^25]: Rosen v. Slovan-Rosen, 2010 ONSC 2145, per Spies J., at para. 12
[^26]: Wilson v. Marchand, 2007 ONCJ 455, per Zisman J., at para. 9
[^27]: Gatta v. The Corporation of the City of St. Catharines, 2010 ONSC 6721, para. 16
[^28]: Orkin in The Law of Costs (Canada Law Book, 2d ed.), para. 311.1(5)
[^29]: The Corporation of the City of Brantford v. Montour, 2013 ONSC 121, per Arrell J., para. 34
[^30]: Paonessa v. Armstrong, 2003 ON SC 31373 (), per Flynn J., at para. 23
[^31]: MacRae v. Santa, 2003 ON SC 3937 (), per Pierce J., para. 13
[^32]: Daurio v. Cameron, 2005 24256 (ON SC), per Sproat J., at para. 26
[^33]: Fraser v. UBS, 2012 ONSC 128, per Wein J., para. 9