Court File and Parties

COURT FILE NO.: 9882/14 DATE: 2016/07/14

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Raymond Desmarais and Tammy Franzen Terrance Green, for the Applicants Applicants

- and -

The Corporation of the Town of Fort Erie Sara J. Premi, for the Respondent Respondent

The Honourable Justice T. Maddalena

COSTS ENDORSEMENT

[1] I heard this application at Welland, Ontario on February 9, 2016.

[2] I released a written decision on March 10, 2016.

[3] I received the costs submissions of the respondent Town on March 29, 2016. I received the costs submissions of the applicants on May 5, 2016.

The Position of the Respondent Town of Fort Erie

[4] The respondent Town seeks an order requiring the applicants to pay costs on a substantial indemnity scale in the total amount of $21,547.21 which includes legal fees of $18,010.50 plus disbursements in the amount of $1,069.55 plus HST on fees and applicable disbursements. The respondent submitted a Bill of Costs outlining all of the aforementioned.

The Position of the Applicants

[5] The applicants submit that the disbursements of $1,069.55 plus HST are reasonable, but submit that the time spent by counsel for the respondent on the file preparation to be excessive.

[6] Further, however, the applicants submit that there should be no costs awarded on the grounds that the issues before the court were valid issues requiring the court’s adjudication.

[7] The applicants did not submit their Bill of Costs for the court’s consideration.

Analysis

[8] The applicants’ application was dismissed. The successful party was the respondent Town. Accordingly, costs ought to be awarded to the respondent on a partial indemnity basis.

[9] In assessing costs, the court should consider those factors outlined in Rule 57.01(1) of the Rules of Civil Procedure.

[10] Neither party submitted a Rule 49 offer to settle for the court’s consideration.

[11] First, the hourly rate submitted by counsel for the respondent is fair and reasonable given the respondents’ counsel’s years of experience. However, this rate of $300 per hour does not represent the partial indemnity rate.

[12] In the case of Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), the Court held that the overall objective of fixing costs does not begin and end with the calculation of hours times rates. The Court held the overall objective is to fix an amount that is fair and reasonable, having regard to the broad range of factors in Rule 57.01 and what is fair and reasonable for the unsuccessful party to pay.

[13] The respondent submits this matter was heard some 16 months after the initial application was filed in October 2014. The respondent submits that the applicants filed a notice of application originally without supporting materials.

[14] Further, both the applicants and the respondent submit that there were delays occasioned by the other in bringing this matter forward.

[15] From the record it is clear that the application was adjourned at least twice at the request of the applicants, that is, on June 9, 2015 and December 4, 2015. There is dispute about a proposed hearing which was scheduled September 18, 2015 and who was to notify the respondent. The respondent prepared for a hearing but was not aware of an adjournment until the scheduled day of court. The respondent submits that the applicants who knew of the adjournment had the responsibility to notify the respondent of the adjournment. The applicants submit that there was a misunderstanding with the trial co-ordinator, and the applicants understood that the trial co-ordinator was notifying the respondent of the adjournment.

[16] Nevertheless, all of the above factors are not sufficient to bring costs within a substantial indemnity scale.

[17] The Supreme Court of Canada has held that conduct warranting substantial indemnity costs must be reprehensible, scandalous or outrageous (Young v. Young, [1993] 4 S.C.R. 3).

[18] Considering all of the aforementioned factors, costs should be awarded on a partial indemnity basis. Therefore, on a partial indemnity basis, I order the applicants to pay the costs of the respondent fixed at $18,112.80 all-inclusive and payable within 30 days.

Order Made

[19] The applicants shall pay to the respondent its costs fixed, on a partial indemnity basis, in the amount of $18,112.80 all-inclusive and payable within 30 days.

Maddalena J. Released: July 14, 2016