CITATION: Van-Rob Inc. v. Rapid Metals LLC, 2016 ONSC 2242

NEWMARKET COURT FILE NO.: CV-14-120794

DATE: 20160401

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

VAN-ROB INC.

Plaintiff/Responding Party

– and –

RAPID METALS LLC

Defendant/Moving Party

Shane Kazushner, for the Plaintiff

Andrew Ottaway, for the Defendant

HEARD: By Written Submissions

RULING ON COSTS

DOUGLAS J.

[1] This is my ruling on costs arising from the Defendant’s motion for particulars in the above matter heard February 18, 2016 with Reasons for Decision released on February 23, 2016.

[2] There can be no doubting that the Defendant was successful on the motion as I ordered that the Plaintiff answer all of the particulars demanded.

[3] On the issue of costs I directed as follows:

If unable to agree on costs the parties shall, within 30 days, provide written submissions (restricted to two pages excluding offers and bills of costs) through my assistant at Barrie.

[4] On March 24, 2016 I received the Defendant’s cost submissions, bill of costs and offer to settle. The Defendant seeks costs of $13,511.02 calculated on a partial indemnity basis to the date of the offer to settle and on a substantial indemnity basis following the offer to settle.

[5] The Plaintiff submits that there should be either no costs or in the alternative costs in the amount of $1500 payable in cause.

[6] A preliminary issue arises with respect to the submissions on costs. The Defendant argues that the Plaintiff’s costs submissions exceeded my direction that they be limited to two pages and that they were delivered late. The Defendant also submits that the Plaintiff did not contact the Defendant in an effort to resolve costs. The Defendant has delivered reply submissions to costs and seeks an oral hearing on the issue of costs.

[7] First I note that my Reasons for Decision on the substantive issue on the motion did not require the parties to communicate in an effort to resolve the issue of costs although that is obviously desirable and preferable. I only directed that if the parties were unable to agree on costs that submissions be made in writing. As an aside I find it curious that the Defendant seeks to criticize the Plaintiff for failing to contact the Defendant to discuss resolution of costs when the Defendant could just as easily have contacted the Plaintiff. In any event, no issue arises in this respect for costs purposes.

[8] The Plaintiff’s cost submissions were received later than the 30 days stipulated in my Reasons for Decision and they were marginally longer than directed by me. The Defendant has delivered brief reply submission responsive to the issues raised in the Plaintiff’s responding submissions.

[9] I shall review and consider all of the written submissions that I have received. I will not convene an oral hearing on the issue of costs as such is disproportionate to the significance of the issue.

[10] My practice in directing that the parties provide written submissions on costs within 30 days, without specifying who should be delivering submissions first, recognizes that success on a motion may be dependent on the contents of any offers to settle exchanged prior to argument; thus it is not possible before receiving submissions to asses who was the successful party on the motion and thus who might be the party seeking costs. I find that I can usually rely on counsel to develop a mutually agreeable timetable for exchange of submissions.

[11] Regarding the issue of costs, I find that the offer to settle does trigger a potential claim by the Defendant to substantial indemnity costs from the date of the offer, unless I order otherwise.

[12] In exercising my discretion under s. 131 of the Courts of Justice Act I am to consider the factors outlined in r. 57.01(1) of the Rules of Civil Procedure. In this regard the hourly rates charged by Defendant’s counsel are not unreasonable although there is merit to the Plaintiff’s submission that at fifty-seven hours an excessive amount of time has been expended in relation to this motion. The principle of proportionality must be considered.

[13] I also find merit in the Defendant’s submission that the court is denied an opportunity to consider the amount of costs the Plaintiff, an unsuccessful party, could reasonably expect to pay in relation to this motion given the Plaintiff’s failure to produce a bill of costs.

[14] This motion was not complex although the Defendant’s factum was of considerable assistance to me in preparing my Reasons for Decision.

[15] The issues were of moderate importance.

[16] Ultimately, my decision on costs must be reasonable and fair in all of the circumstances.

[17] In considering all of the foregoing I award costs to the Defendant fixed in the amount of $8,000 all-inclusive and payable within 30 days.

Douglas J.

Released: April 1, 2016