Court File and Parties

CITATION: The Power Limited Partnership v. OEFC, 2016 ONSC 5290

COURT FILE NO.: CV-12-465795

DATE: 2016-08-22

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: THE POWER LIMITED PARTNERSHIP, Plaintiff

AND: ONTARIO ELECTRICITY FINANCIAL CORPORATION, Defendant

BEFORE: Justice Matheson

COUNSEL: Blair W.M. Bowen and Martine S.W. Garland, for the Plaintiff Timothy Pinos and Emily Larose, for the Defendant

HEARD: In writing.

COSTS ENDORSEMENT

[1] This costs endorsement arises from the defendant’s successful motion for summary judgment. Reasons for decision dismissing this action were released on July 7, 2016, cited as 2016 ONSC 4415.

[2] The defendant seeks its costs of the motion and this proceeding in the amount of $323,774.41 in fees and $7,840.96 in disbursements, including HST, for a total of about $331,500. The plaintiff accepts the entitlement to costs, but disputes the amount, submitting that an appropriate figure would be $210,000 all-inclusive.

[3] A favourable offer to settle was served by the defendant on June 12, 2013. The plaintiff does not dispute that this offer results in the entitlement to substantial indemnity costs from June 13, 2013 on forward.

[4] The general principles applicable to the order of party and party costs are well settled. Costs are discretionary. Rule 57.01 of the Rules of Civil Procedure sets out factors I may consider in exercising my discretion, in addition to the result of the proceeding and any written offers to settle.

[5] Certain general principles have now been expressly articulated in subparagraphs (0.a) and (0.b) of Rule 57.01, specifically the principle of indemnity and the affirmative obligation to consider the amount of costs than an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed. Overall, the objective is to fix an amount that is fair and reasonable, having regard for, among other things, the expectations of the parties concerning the quantum of costs: Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634, 71 O.R. (3d) 291 (C.A.) at paras. 26, 38.

[6] This was a significant commercial matter justifying the use of senior commercial counsel, which informs the reasonable expectations of the unsuccessful party.

[7] I have considered all relevant factors in the exercise of my discretion regarding costs. Without limiting that consideration, I note that this was a complex matter, with a significant amount claimed, and gave rise to issues that were important to the parties. However, the hourly rates sought ($495 an hour on a substantial indemnity basis and $330 an hour on a partial indemnity basis) are excessive for all but senior counsel. As well, the time sought for the three counsel involved is to some extent excessive and does not show sufficient delegation to junior counsel.

[8] Taking everything into account, I fix costs payable to the defendant at $240,000, including fees, disbursements and any applicable taxes.

Justice W. Matheson

Date: August 22, 2016