Court File and Parties

COURT FILE NO.: CV-16-553042 DATE: 20160718 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: MITCHELL COHEN (Plaintiff) AND: WOODCLIFFE CORPORATION, WESTDALE CONSTRUCTION CO. LIMITED, PRICE EQUITIES LIMITED, PRICE LEASEHOLDS LIMITED and ROSEDALE EQUITIES LIMITED (Defendants)

BEFORE: M. D. FAIETA, J.

COUNSEL: Jamie VanWiechen, for the Plaintiff Colin P. Stevenson, for the Defendant, Woodcliffe Corporation

C O S T S E N D O R S E M E N T

BACKGROUND

[1] The Defendant, Woodcliffe Corporation, claims partial indemnity costs in the amount of $13,291.85, inclusive of disbursements in the amount of $337.70. The Defendant delivered a Notice of Change of Lawyer a few days before this motion. The Defendant claims 34.8 hours for its newly retained counsel to prepare and attend this motion. The Defendant delivered a three page outline of argument, a document brief comprised of three documents including a three paragraph affidavit from a legal assistant that appended a letter, and a book of authorities that contained ten cases. The Plaintiff notes that the Defendant’s Bill of Costs does not provide what portion of time was spent considering the entire action and what time was spent responding to the motion.

[2] Counsel for the Plaintiff docketed 11.2 hours in respect of preparation for, and attendance at, this motion. As a result, his costs on a partial indemnity basis for this motion were about $3,500.00. The Plaintiff submits that the hours spent by the Defendant’s counsel were completely unreasonable, disproportionate and not within the reasonable expectations of the parties. Further, the Plaintiff submits that the majority of the time spent by the Defendant’s counsel related to the defence of the action rather than the motion.

ANALYSIS

[3] Under section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, the court has a broad discretion to determine by whom, and to what extent, costs of a proceeding shall be paid. However, this discretion is subject to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[4] Traditionally the purpose of an award of costs was to indemnify a successful party for its legal costs. While the result in the proceeding and the principle of indemnity continue to govern the award of costs under Rule 57.01(1) of the Rules of Civil Procedure, many other considerations also inform whether the interests of justice are served by an award of costs. In British Columbia (Minister of Forest) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371, the traditional approach to costs is now “animated by the broad concern to ensure that the justice system works fairly and efficiently.” In assessing costs, a court must consider what is “fair and reasonable” in fixing costs with a view to indemnifying a successful party with a goal of fostering access of justice: Boucher v. Public Accountants Council (Ontario), 71 O.R. (3d) 291 (C.A.).

[5] 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] As noted above, a relevant consideration is that the amount of costs awarded should reflect what an unsuccessful party could reasonably expect to pay rather than the exact amount of costs actually incurred by the successful party. See: Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66, at para. 52.

[7] Another relevant consideration is proportionality. Rule 1.04(1.1) provides that in applying the Rules of Civil Procedure, the Court shall make orders that are proportionate to the importance and complexity of the issues, and to the amount of money involved, in the proceeding.

[8] Applying the above considerations in light of the submissions of the parties, I find that it is fair and reasonable to award the sum of $6,000.00 in costs to the Defendant given: (1) the reasonable expectations of the Plaintiff; (2) the parties agree that the issues raised were of average complexity; (3) the time spent by the Defendant’s counsel went beyond what would have otherwise been required for preparation for the motion, nor were reflected in what was provided to this Court, had the Defendant not chosen to retain new counsel.

M. D. FAIETA, J. Released: July 18, 2016