Court File and Parties
Court File No.: 02-CV-230366-CM2 Date: May 30, 2016 Superior Court of Justice - Ontario
Re: Multitecture Inc. and Ben Kutner, Plaintiffs And Arie Gaertner and Miller Canfield Paddock and Stone LLP, Defendants
Before: The Honourable Mr. Justice Martin James
Counsel: Martin Diegel for the Plaintiffs Stephen Cavanagh and Sara Mahoney for the Defendants
Heard: Written Submissions
Costs Endorsement
Introduction
1This is a costs endorsement subsequent to a 6 day trial where the defendants were completely successful.
2There is nothing in the circumstances of this case that warrants a departure from the usual rules respecting costs awards including the following:
- Costs are generally recoverable on a partial indemnity basis.
- Typically partial indemnity costs fall within a range of 50% to 70% of the successful parties actual costs. Here a factor of 60% is appropriate.
- The determination of costs is not based on an established mathematical formula involving time spent and individual hourly rates. These factors are important but a proper costs award ought to include a consideration of the amount which a reasonably informed losing party could expect to pay.
- Costs should be proportionate to the importance and complexity of the action and to amount involved.
- Recovery of disbursements is governed by the applicable tariff.
Analysis
3The defendants’ bill of costs sets out the defendant’s actual costs claim of $131,126.00 Plus HST and disbursements.
4The plaintiff says that the time spent is excessive and notes several adjustments that ought to be made including a credit for time spent on a motion for security for costs. If costs are to be awarded at all, the plaintiff suggests that a maximum of $50,000 would be appropriate.
5The defendants had a substantial quantity of productions to review due to the nature of the predicate action out of which the claim arose. Review of extensive productions is time consuming.
Disposition
6In all the circumstances I find that an appropriate amount for partial indemnity costs is $65,000.00 plus HST and disbursements.
7As for disbursements, they are allowed as presented except for airfare of $1,562.48 and parking of $190.23 which were unexplained and likely fall outside the applicable tariff.
8These costs are payable by the plaintiff Ben Kutner (the corporate plaintiff having discontinued previously) to the defendants within 30 days.
The Honourable Mr. Justice James
Date: May 30, 2016