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
[1] This is a costs endorsement subsequent to a 6 day trial where the defendants were completely successful.
[2] There 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.
[3] The defendants’ bill of costs sets out the defendant’s actual costs claim of $131,126.00 Plus HST and disbursements.
[4] The 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.
[5] The 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.
[6] In all the circumstances I find that an appropriate amount for partial indemnity costs is $65,000.00 plus HST and disbursements.
[7] As 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.
[8] These 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