Court File and Parties
Court File No.: CV-14-2514-00 Date: 2016-06-22
Superior Court of Justice - Ontario
Re: Carla Campana v. The City of Mississauga and Peel Condominium Corporation #89
Before: Fragomeni J.
Counsel: Mark Fahmy, Menreet Salama, for the Plaintiff Avril Allen, for the Defendant, The City of Mississauga Joseph Lin, for the Defendant, Peel Condominium Corporation #89
Endorsement Re: Costs
[1] The City of Mississauga and Peel Condominium Corporation #89 (“PCC89”) both brought motions for summary judgment dismissing the Plaintiff’s claim. Both motions were dismissed.
[2] The Plaintiff, Carla Campana, seeks costs on a partial indemnity basis as follows: Fees $27,508.72 (including HST of $3,164.72) plus disbursements of $1,258.28 for a total of $28,767.00.
Position of Mississauga
[3] Mississauga submits that there should be no order as to costs or that costs should be in the cause. Mississauga submits that the plaintiff’s success at the motion is largely attributable to a last minute change in her key discovery evidence so as to give rise to a triable issue of fact regarding the size and appearance of the hole. Mississauga also submits that if an award of costs is made it should reflect the minimal materials prepared and reviewed in relation to the City’s motion and offset against an order of costs payable to the City for costs thrown away for preparation of the motion materials following the Plaintiff’s last minute withdrawal of key admissions given on her discovery.
Position of PCC89
[4] PCC89 submits that the rates claimed for a fifth year and third year lawyer are too high. The Plaintiff is on a contingency fee agreement with her counsel and there will be no bill forwarded by Plaintiff’s counsel to the client. These were two separate motions and there is nothing that should make this costs order joint and several as between the Defendants.
[5] PCC89 suggests $8,000 all-inclusive for its portion of the Plaintiff’s costs and disbursements.
Analysis and Conclusion
[6] The Plaintiff was completely successful on both motions. I am satisfied that the Plaintiff is entitled to costs.
[7] Mississauga argues that the plaintiff changed her testimony and it is for that reason that a triable issue arose relating to the size and appearance of the hole. In making that submission, Mississauga fails to consider paragraph 33 of my endorsement which sets out the following:
In conclusion, I am satisfied that there are genuine issues that cannot be resolved without a trial. There are many issues that can only be determined at trial, including the following:
What was the actual size of the hole that the plaintiff tripped and fell in vis-à-vis the size of her shoe?
Did Arthex Landscaping maintain the boulevard beyond the scope of just cutting the lawn?
Did PCC89 through the services of Arthex, have control over the boulevard, thereby putting it within the definition of occupier? Did PCC89 take an active role in maintaining the condition or state of the boulevard to such a degree that it was an occupier of the said boulevard?
If in fact PCC89 is not found to be an occupier, does any liability attach to it in negligence?
Was the City’s general policy on inspecting the boulevard reasonable?
Was the boulevard in a reasonable state of repair? If it was not, did the City take all reasonable steps to prevent the claimed non-repair from arising?
[8] There were more triable issues identified beyond just the size of the hole. Further, Mississauga should have realized that an ultimate finding of fact on that issue could not have been made at a Summary Judgment Motion but rather would have to be determined by the trial judge at trial. Mississauga’s attempt to blame the Plaintiff for this Motion is misplaced and unreasonable.
[9] Rule 57.01(1) of the Rules of Civil Procedure sets out the following factors the court ought to consider in exercising its discretion in awarding costs:
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.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.
[10] In Boucher v. Public Accountants Council for the Province of Ontario, [2004] O. J. No. 2634, Armstrong J.A. sets out the following at paras. 24-26:
[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), 21 C.C.E.L. (3d) 161 (Ont. 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.
See also Stellarbridge Management Inc. v. Magna International (Canada) Inc., [2004] O.J. No. 2102 (C.A.) para. 97.
[25] Zesta Engineering and Stellarbridge simply confirmed a well settled approach to the fixing of costs prior to the establishment of the costs grid as articulated by Morden A.C.J.O. in Murano v. Bank of Montreal at p. 249:
The short point is that the total amount to be awarded in a protracted proceeding of some complexity cannot be reasonably determined without some critical examination of the parts which comprised the proceeding. This does not mean, of course, that the award must necessarily equal the sum of the parts. An overall sense of what is reasonable may be factored in to determine the ultimate award. This overall sense, however, cannot be a properly informed one before the parts are critically examined.
[26] It is important to bear in mind that rule 57.01(3) of the Rules of Civil Procedure, which established the costs grid, provides:
When the court awards costs, it shall fix them in accordance with subrule (I) 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.
[11] Rule 57.01(1)(0.b) affirms the principle set out in Boucher that one of the factors to consider is the amount of costs that an unsuccessful party could reasonably expect to pay.
[12] Mr. Fahmy was called to the bar in Ontario in 2012 and in New York in 2010. Ms. Salama was called to the bar in Ontario in 2014. Mr. Fahmy’s partial indemnity rate is at $225 per hour as is Ms. Salama’s. The law clerk’s rate is $80 per hour.
[13] The total hours billed are as follows:
Mr. Fahmy 55.60 Ms. Salama 51.50 Law Clerk 5.70
[14] The total time expended for this motion, between Mr. Fahmy and Ms. Salama of 107.10 hours, is in my view excessive. Although I agree with the Plaintiff that the motion did involve a level of complexity as it related to liability issues, I cannot agree that it would be necessary to have two counsel prepare for and argue the motions. There were multiple Affidavits filed and review of Discovery transcripts were also necessary.
[15] In addition to that, the Defendants filed extensive case law for review. I agree with the Plaintiff that given the nature of the motion and the volume of material filed by the Defendants, the Plaintiff’s responding material was proportionate to the issues being dealt with.
[16] There is no doubt that the motions were of significance to the Plaintiff as they were seeking dismissal of her action.
[17] I am prepared to fix costs of the motions. Having considered all of the circumstances I am satisfied that the amount suggested by PCC89 of $8,000 for its portion of the costs is reasonable. I am satisfied that this amount should also be awarded against The City of Mississauga.
[18] Order to issue as follow:
that the City of Mississauga pay to the Plaintiff her costs of the motion fixed in the all-inclusive sum of $8,000; and
that PCC89 pay to the Plaintiff her costs of the motion fixed in the all-inclusive sum of $8,000.
Fragomeni J. Date: June 22, 2016