Court File and Parties

COURT FILE NO.: CV-14-518462 DATE: 20160616

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

THE USAND GROUP and SEAN MCCOSHEN Plaintiffs – and – KATE KEMPTON and RENEE PELLETIER Defendants

Counsel: Paul-Erik Veel for the Plaintiffs Paul Le Vay and Benjamin Kates for the Defendants

HEARD: Written Submissions

COSTS ENDORSEMENT

DIAMOND J. :

[1] In my Reasons for Decision released on May 18, 2016, absent an agreement between the parties, I asked for costs submissions to be exchanged and filed with my assistant. I have now received and reviewed those costs submissions.

[2] The defendants seek costs of their motion on a partial indemnity basis in the all-inclusive sum of $15,000.00. They submit that as they were successful on the “principal issue” of striking out the “campaign of defamation” allegations in paragraphs 25, 37 and 43 of the Amended Statement of Claim, they ought to be awarded 75% of their actual partial indemnity costs (which initial sum was in the same range as the total costs sought by the plaintiffs if successful).

[3] The plaintiffs submit that as they were successful in opposing the defendants’ motion to strike out the plea of malice at paragraphs 21, 22, 24, 25, 26, 39, 45 and 46 of the Amended Statement of Claim, there ought to be no costs as in the end there was divided success on this motion.

[4] As always, I am mindful that the Court is required to consider what is “fair and reasonable” in fixing costs with a view to balancing compensation of a successful party with a goal of fostering access of justice: Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.).

[5] Pursuant to Rule 57.01 of the Rules of Civil Procedure, the Court may consider the following factors when exercising its discretion to award costs:

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(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;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs.

[6] Typically, absent exceptional circumstances, costs ought to follow the event. In my view, while success was arguably divided, there was undoubtedly some additional time and focus exerted upon the “campaign of defamation” allegations in paragraphs 23, 37 and 43 of the Amended Statement of Claim. Indeed, a review of the settlement discussions that preceded the bringing of the motion discloses that the defendants were willing to avoid the motion in exchange for the expunging of paragraph 43 only. The “campaign of defamation” allegations were clearly matters of concern and importance for the defendants and their position was validated in my Reasons.

[7] The plaintiffs further submit that the defendants’ costs are excessive and inflated. The plaintiffs point to the claimed partial indemnity hourly rates of defendants’ counsel being approximately 90% of the actual hourly rates set out in the defendants’ Bill of Costs. While these amounts do seem high, and appear inconsistent with the definition of partial indemnity costs under the Rules of Civil Procedure (i.e. substantial indemnity rates being no more than 1.5 times partial indemnity rates), I note that the partial indemnity rates sought by plaintiffs’ counsel (for similar years of call) are more than 60% higher than those claimed by defendants’ counsel.

[8] In the circumstances, and having regard to the results achieved, the reasonable expectations of the parties, and the hours claimed, I award the defendants their costs of the motion fixed in the all-inclusive amount of $11,500.00 and payable by the plaintiffs forthwith.

Diamond J. Released: June 16, 2016