Court File and Parties

Court File No.: CV-13-5438-00 Date: 2016-05-19 Superior Court of Justice - Ontario

Re: Travis Martin v. Kiewit Alarie A Partnership and Electrical Power Systems Construction Association

Before: Fragomeni J.

Counsel: Julian Heller, for the Applicant Dan J. Shields, for the Respondent Kiewit Alarie A Partnership Samantha M. Crumb, for the Respondent Electrical Power Systems Construction Association

Costs Endorsement

[1] The defendants and responding parties to the motion were wholly successful. Kiewit Alarie A Partnership (“KAP”) seeks costs in the amount of $6,820.71. Electrical Power Systems Construction Association (“EPSCA”) seeks costs in the amount of $4,631.59.

[2] KAP submits that the plaintiff’s motion was without legal foundation, premature and constituted an abuse of process. KAP argues that since the plaintiff was seeking to strike relevant evidence, the importance of the motion to KAP was significant.

[3] EPSCA submits that the motion itself stood virtually no chance of success. The motion unnecessarily delayed the proceedings.

[4] The plaintiff submits that there should be no costs of this motion. In the alternative, the plaintiff argues that costs should be fixed but not payable until the motion for summary judgment is heard. In the further alternative, the plaintiff submits that costs paid to KAP should only be in the amount of $2,500.00 all inclusive. The plaintiff also submits that counsel for EPSCA made no submissions and should have agreed to be bound by the results for KAP. As a result no costs should be awarded to EPSCA.

Conclusion

[5] I am satisfied that the defendants are entitled to costs.

[6] The plaintiff’s motion was dismissed in its entirety. In Boucher v. Public Accountants Council for the Province of Ontario (2004), H.O.R. (3d) 291, the Court stated the following at paras. 24 and 26:

[24] The appellants submit that the motions judge accepted the bills of costs that were presented to her without any deductions. The bills were prepared in accordance with the calculation of hours times dollar rates provided by the costs grid. While it is appropriate to do the costs grid calculation, it is also necessary to step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable. This approach was sanctioned by this court in Zesta Engineering Ltd. v. Cloutier, [2002] O.J. No. 4495, 21 C.C.E.L. (3d) 161 (C.A.) at para. 4 where it said:

In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.

[26] It is important to bear in mind that rule 57.01(3), which established the costs grid, provides:

When the court awards costs, it shall fix them in accordance with subrule (1) and the Tariffs.

Subrule (1) lists a broad range of factors that the court may consider in exercising its discretion to award costs under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The express language of rule 57.01(3) makes it clear that the fixing of costs is not simply a mechanical exercise. In particular, the rule makes clear that the fixing of costs does not begin and end with a calculation of hours times rates. The introduction of a costs grid was not meant to produce that result, but rather to signal that this is one factor in the assessment process, together with the other factors in rule 57.01. Overall, as this court has said, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.

[7] Rule 57.01(1)(0.b) states:

57.01(1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing.

(0.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…

[8] The hearing before me at the motion was not lengthy. Counsel for EPSCA made no submissions and relied on the oral submissions made by counsel for KAP.

[9] KAP’s Bill of Costs sets out the following:

Total hours – 20.7 Total disbursements – serving and filing material - $344.65 Photocopies - $561.38 Dan Shields – Called to the Bar 1983 Brandin O’Connor – Called to the Bar 2013 Hourly rate for Mr. Shields - $350.00 on a partial indemnity basis (Total hours – 6.6) Hourly rate for Mr. O’Connor - $200.00 on a partial indemnity basis (Total hours – 14.1)

[10] The Bill of Costs for EPSCA sets out the following:

Total hours – 20.3 Hourly rate for S. Crumb - $175.00 on a partial indemnity basis (Total hours 12.3) Hourly rate for A. Shehata - $60.00 (Student) (Total hours 8.0) Total disbursements - $204.25 (Couriers - $12.84; Process Server - $191.41)

[11] Having reviewed the Bill of Costs filed I am satisfied a reasonable and fair amount that the unsuccessful party would reasonably have expected to pay are as follows:

KAP: $4,000 all inclusive EPSCA - $2,000 all inclusive

[12] Order to issue as follows:

[13] That the plaintiff pay costs to the defendants as follows, such costs to be paid within 30 days:

1. to Kiewit Alarie A Partnership in the sum of $4,000.00 all inclusive;
2. to Electrical Power Systems Construction Association in the sum of $2,000.00 all inclusive.

[14] I am not satisfied that costs should not be paid until the motion for summary judgment is heard. In all of the circumstances of this motion I am satisfied that the costs awarded herein be paid within 30 days. The Defendants were completely successful.

[15] I agree with the submission of EPSCA that the motion was entirely avoidable. The plaintiff was put on notice prior to the situation giving rise to this motion, and that the plaintiff’s decision to call Mr. Comartin under Rule 39.03 could lead to unwanted consequences for the plaintiff. In my view it would not be fair to postpone the payment of costs until the summary judgment motion is disposed of. I am satisfied that the plaintiff, as the unsuccessful party, would have clearly been aware of the consequences of proceeding as he did.

[16] Finally, although counsel for EPSCA did not make oral submissions to the court at the motion, it was reasonable and necessary for EPSCA to prepare and file material and to attend at the motion. As a result, EPSCA is entitled to costs.

Fragomeni J. Date: May 19, 2016