Court File and Parties

Bracebridge Court File No.: CV-14-110 Date: 20160818 Ontario Superior Court of Justice

Between: Ron Brent, Plaintiff – and – Ruth-Ellen Nishikawa, Defendant

Counsel: M.A. MacDonald, for the Plaintiff C.A. Painter, for the Defendant

Heard: By Written Submissions

Reasons for Decision on Costs

R. MacKinnon J.:

[1] The parties advise they have been unable to agree on costs of their summary judgment motions. I have now fully considered their submissions.

[2] The Defendant’s Summary Judgment Motion was unsuccessful. The Plaintiff’s motion was successful. I found the Defendant’s words were untrue at the time they were published, remain untrue, and have never been withdrawn. I found the Defendant knew both at the time of publication and now, two years later, that her words were untrue - and that she demonstrated malice towards the Plaintiff.

[3] Costs usually follow the cause. See Rule 57.03(1) of the Rules of Civil Procedure. From the outset, it was clear that credibility and reliability issues were significant. I am not close to being persuaded other than to fix costs of these motions and the action against Ruth-Ellen Nishikawa as the unsuccessful party. No different order would be more just.

[4] The Plaintiff seeks elevated costs for three reasons. First, he argues that the Defendant acted unreasonable by bringing her unnecessary cross motion. I disagree. Nothing in the existence or presentation of the cross motion was unreasonable. She was fully entitled to bring her motion but it was unsuccessful. Secondly, Plaintiff’s counsel argues the Defendant acted in bad faith for the purpose of delay. I have fully considered counsel’s submissions on this point but find neither bad faith nor unusual or unreasonable motion delay by the Defendant in these circumstances.

[5] Thirdly, counsel for the Plaintiff argues that the result obtained by Mr. Brent was more favourable than the terms of his offers to settle - none of which were Rule 49 compliant. The Plaintiff’s December 5, 2014 Offer to Settle was not served until April 17, 2015 and was less favourable to him than the judgment - but was withdrawn on November 7, 2015 before his Summary Judgment Motion was brought. It was replaced by his written proposal, as expressed by his counsel on November 7, 2015, for a full written public apology. That proposal set out no detailed terms for the apology and called for a donation in an unspecified sum to be made by the Defendant to the Township of Muskoka Lakes Nursing Station in Port Carling. Those terms were broad, general proposals but were insufficiently focused and detailed to amount to Rule 49 compliance or to permit a reasoned comparison with this court’s judgment.

[6] I find, however, that the Plaintiff was open to settlement throughout. He was the only party to make offers to settle. Ms. Nishikawa’s defamatory words towards Mr. Brent were never withdrawn. She has never made any offers to settle. In these circumstances, I am sorely tempted to conclude that the Plaintiff is entitled to substantial or full indemnity costs of the motions and the action. That said, I am not persuaded on a balance of probabilities that the Plaintiff’s request quite meets the high test for an elevated indemnity level costs award.

[7] I am not satisfied that the Defendant’s words and actions were sufficiently egregious or reprehensible standing alone to demand by themselves an award of substantial indemnity costs. Nor am I persuaded the Defendant counsel’s actions added to the complexity of the motion. I do find, however, that the totality of circumstances in this case, including the demonstrated malice of the Defendant and her failure to apologize should result in reasonably generous partial indemnity costs to be awarded to the Plaintiff.

[8] In fixing costs, a judge is not assessing costs as if he or she were performing a function of an assessment officer. The object of fixing costs is to avoid the delay and added cost of a full assessment. The court determines what the services devoted to the proceedings are worth. The incurring of costs and time spent by counsel in any litigation is essentially the exercise of judgment. The prudence, foresight and imagination of the judgment must be considered at the time the work was done or disbursement incurred. It is inappropriate to apply a test of hindsight to determine whether a service or charge was for an extra, not reasonably necessary to advance the client’s position. The time to view the decision to commit services to the issue is before the motion.

[9] I have considered all of the discretionary factors set out in Rule 57.01(1), the experience of successful counsel, the rates charged, and the hours spent. I have also considered the principle of indemnity and the amount of costs an unsuccessful party could reasonably expect to pay in relation to this proceeding.

[10] In coming to a conclusion, I have attempted to be fair to both parties. I repeat that in fixing costs I am not meticulously assessing them as if I was performing the function of an assessment officer. I have, however, conducted a critical examination of the work performed by Plaintiff’s counsel in this case.

[11] I have a wide latitude under Section 131 of the Courts of Justice Act and do not consider it to be my role to second guess the time spent by counsel, unless the time is manifestly unreasonable in the sense that the total time spent or disbursements incurred were clearly excessive, or that the matter was the subject of an unwarranted legal personnel. Except as otherwise noted, none of those exceptions is demonstrated in this case.

[12] I agree with counsel for the Defendant that law office personnel time spent on purely administrative tasks is not generally compensable. The Defendant was successful at her December 14, 2015 motion before Wood J. Both parties sought costs but they were awarded by that court only in favour of the Defendant. They were paid. It is not for me at this stage to revise, reverse, or sit on appeal from that costs order. Further, I am not persuaded that the Defendant’s motion before Wood J. was a delay tactic. The costs incurred for that motion have been dealt with and are not part of this fixing.

[13] It was within the reasonable expectation of Ms. Nishikawa that significant costs were being generated on these motions before me and, if unsuccessful, she would be exposed to either or both partial and substantial or full indemnity costs. Fixing of costs is not a pure mathematical exercise of hours spent times hourly rate. The overriding objective in awarding costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding.

[14] I fix partial indemnity costs both of the motions before me and the action, inclusive of the costs of this fixing, in the amount of $14,500 inclusive of fee, disbursements and HST. Ruth-Ellen Nishikawa shall pay this sum forthwith.

[15] I thank both counsel for their assistance throughout.

R. MacKinnon J. Released: August 18, 2016