Court File and Parties

COURT FILE NO.: CV 12-74 DATE: 20160428 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Robin Carson and Chris Forde, Plaintiffs – and – The Corporation of the Town of Kearney, Defendant

Counsel: David A. Morin, for the Plaintiff M. John Ewart, for the Defendant

Judge: E.J. Koke

Costs Endorsement

[1] This action arose as a result of what the plaintiffs allege were the defendant municipality’s arbitrary, inconsistent and unreasonable actions in response to their applications for the approvals and licences which they required to re-locate their business to a new business property.

[2] The plaintiffs recovered damages and interest in excess of $292,000 plus interest, following discoveries, two failed pre-trials, and a six day trial.

[3] The plaintiffs served three formal offers to settle during the course of the litigation, all of which were exceeded at trial. They seek a contribution to fees on a partial indemnity basis until the date of their first offer, and on a substantial indemnity thereafter, with the exception of a period of time during which the plaintiff’s second offer was withdrawn until the third offer was served.

[4] The plaintiffs seek the following as a contribution to their fees: a) Fees:……………………….$194,072.00 b) HST:……………………..….$25,229.36 c) Disbursements and Taxes:.…$16,117.63 Total:…………………..…. $235,418.99

[5] I have read the written submissions on costs provided by both counsel for the parties, together with the attachments and cases contained therewith.

[6] The plaintiffs seeks court approval of an hourly rate for Mr. David Morin who is the lawyer of record in the amount of $350.00 on a partial indemnity basis and $525.00 on a substantial indemnity basis. They claim the rate of $350 per hour on a partial indemnity basis and $370 on a substantial indemnity basis for Ms. Joyce Chun who devoted 116 hours to working on file.

[7] Mr. Morin’s actual hourly rate between the commencement of the lawsuit in 2012 to its conclusion in 2016 increased from $410 per hour to $525 per hour. He was called to the bar in 1994 and he therefore had between 18 and 22 years of experience as a practicing lawyer during the currency of the litigation. He asks the court to note that the adjusted rates set out in the Costs Bulletin which replaced the cost grid in 2005 provides that a lawyer with over 20 years’ experience can claim an hour rate of $413.15 on a partial indemnity basis and $620 on a substantial indemnity basis. Ms. Chun was called to the bar in 1993 which is a year before Mr. Morin was called and her actual hourly rate is $370 per hour.

[8] Using the same inflation calculation used by the plaintiffs I note that for lawyers of between 10 and 20 years’ experience the partial indemnity rate is 354.13 per hour.

[9] The defendant argues that if the court is inclined to award costs to the plaintiffs it should award no more than $250 per hour on a partial indemnity basis and $350 per hour on a substantial indemnity basis for Mr. Morin’s services.

[10] In objecting to the hourly rate proposed by the plaintiffs, the defendant argues that the principle of proportionality requires that the fee be fixed at a the lower rate.

[11] In this case the plaintiffs made a number of offers to settle, for a modest amount, early on in the litigation. Instead of accepting these offers the defendant municipality continued to engage in conduct which can only be described as high handed and dismissive. As a result the litigation dragged on for more than four years, during which time the two young plaintiffs were forced to incur ongoing losses and were almost driven to insolvency.

[12] Plaintiff’s counsel refers me to the comments of Master Wiebe, quoting from Cimmaster Inc. v. Piccione, 2010 ONSC 846, at paragraph 19 where Gray J. stated:

The principle of proportionality should not normally result in reduced costs where the unsuccessful party has forced a long and expensive trial. It is cold comfort to the successful party, who has been forced to expend many thousands of dollars and many days and hours fighting a claim that is ultimately defeated, only to be told that it should obtain a reduced amount of costs based on some notional concept of proportionality.

[13] The judgment in this case represents an attempt by the court to make the plaintiffs whole, in so much as a court award can do so. In my view, it would be unfair to the plaintiffs if they were now forced to use a significant amount of this award to pay their legal costs; it might be otherwise if they had not made such sincere attempts to resolve the matter.

[14] In conclusion, the circumstances of this case is such that the principle of proportionality is substantially outweighed by the principle of indemnity.

[15] The defendant also argues that costs should not be allowed to these plaintiffs or should be lowered because the case raised important issues of significance to the broader community.

[16] I agree that the issues raised by the plaintiffs were important issues. However, it would be unfair to these plaintiffs to now require them to use a substantial amount of their award to pay their legal costs for this reason. Again, it might be otherwise if they had not made serious attempts to resolve the dispute by making a number of very reasonable offers to settle. The principle of indemnity again substantially outweighs this consideration.

[17] Mr. Morin is a highly respected litigation counsel in the Greater Parry Sound and Huntsville regions. He is certified as a specialist in civil litigation. In my view, the issues were complex and some were quite novel and I approve of them. I note that the substantial indemnity rate charged by Ms. Chun is a modest $370.00 per hour, which is only $20.00 an hour more than her partial indemnity rate. I find that the rates Mr. Morin is claiming are reasonable, as are the rates attributed to Ms. Chun.

[18] The defendant also objects to the claim for compensation for two clerks and a paralegal who worked on the file during the four years of litigation. The amount claimed for them does not exceed the amounts set out in the Costs Bulletin. I have reviewed the accounts and I do not see any duplication of services provided by these clerks and the paralegal and I therefore approve of them.

[19] The plaintiffs are awarded costs of $235,418.99.

E.J. Koke SCJ Released: April 28, 2016