Court File and Parties
Court File No.: CV-14-0109 Date: 2016-09-19 Superior Court of Justice – Ontario
B E T W E E N:
MICHAEL LEMESANI, Plaintiff (Responding Party)
- and -
LOWERYS INC., Defendant (Moving Party)
Before: Platana J.
Counsel: Jordan Lester, for the Plaintiff (Responding Party) Dan Matson, for the Defendant (Moving Party)
Heard: June 16, 2016, at Thunder Bay, Ontario
Decision on Costs
[1] On June 30, 2016, I released reasons on a motion brought by the Defendant to require the Plaintiff to answer undertakings given on discovery, and to re-attend for further examination. I dismissed the motion essentially because of the late timing in bringing the motion, occasioned to a large extent because I found that the Defendant’s counsel was the author of the delay by not responding in a timely, and courteous manner, to requests by Plaintiff’s counsel. A trial date had been fixed for trial prior to the motion being brought.
[2] I allowed counsel time to make submissions on costs in writing. The Defendant agrees that the Plaintiff is entitled to its costs on the motion, and submits that the sum of $1,287.91, inclusive of fees, disbursements, and HST is fair and reasonable.
[3] The Plaintiff seeks costs of $3,936.75 on a substantial indemnity basis, on the rationale that the motion was brought at a very late stage in the proceedings (after the motion was placed on a trial list). The Plaintiff further submits that substantial indemnity costs should be awarded on the basis of Serra v. Serra (2009), ONCA p. 42 where the Court of Appeal reiterated the fundamental purposes which modern costs rules are designed to foster, one of which is to discourage and sanction inappropriate behaviour.
[4] The Plaintiff has provided a Bill of Costs showing partial indemnity costs of $2,688.70, including HST and disbursements.
[5] The Defendant notes that the Bill of Costs includes time entered prior to the commencement of the motion, and clerk’s time for drafting. The Defendant presents a Bill of Costs showing partial indemnity total costs of $1,931.60 and substantial indemnity of $3,067.34.
[6] The award of costs on a substantial indemnity basis had traditionally been reserved for cases where the court wishes to show its disapproval of conduct, or in circumstances where the court is of the opinion that the successful party ought not to be put to any expense for costs (see Apotex Inc. v. Egis Pharmaceuticals and Novopharm Ltd. (1991), 4 O.R. (3d) 321). Circumstances warranting such an award can include allegations of misconduct by solicitors.
[7] Although I found the Defendant’s solicitor conduct inappropriate, and I accept, disrespectful, it does not in my view attain the level which warrants costs to be awarded on a substantial indemnity basis. That does not necessarily mean that the conduct need be ignored as a factor to consider under R. 57.01.
[8] An award of costs is a matter in the discretion of the trial judge by virtue of s. 131(1) of the Courts of Justice Act. In Anderson v. St. Jude Medical Inc., [2006] O.J. No. 508 (Ont. Div. Ct.), at para. 22, the Divisional Court set out the principles to be applied by the court in exercising its discretion (citations omitted):
- The discretion of the court must be exercised in light of the specific facts and circumstances of the case in relation to the factors set out in Rule 57.01(1).
- A consideration of experience, rates charged and hours spent is appropriate, but is subject to the overriding principle of reasonableness as applied to the factual matrix of the particular case. The quantum should reflect an amount the court considers to be fair and reasonable rather than any exact measure of the actual costs to the successful litigant.
- The reasonable expectation of the unsuccessful party is one of the factors to be considered in determining an amount that is fair and reasonable: Rule 57.01(1)(O.b).
- The court should seek to avoid inconsistency with comparable awards in other cases. “Like cases [if they can be found], should conclude with like substantive results.”
- The court should seek to balance the indemnity principle with the fundamental objective of access to justice.
[9] Rule 57.01 allows the court to take into account “any other matter relevant to the question of costs.” Read in conjunction with s. 131 of the Courts of Justice Act, the court therefore has a wide discretion.
[10] The Court of Appeal has made it clear that in assessing costs, the overriding principle is one of reasonableness, and that the failure to follow that principle can produce a result that is contrary to the fundamental objective of access to justice (Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (Ont. C.A.), at p. 302).
[11] In Zesta Engineering Ltd. v. Cloutier, [2001] O.J. No. 4495 (Ont. C.A.), at para. 4 the Court of Appeal did not make a specific finding with respect to the amount of time spent or the rates charged by counsel, and stated:
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 party rather than any exact measure of the actual costs of the successful litigant.
[12] Having regard to the factors set out in Rule 57.01(1), and the principles discussed in Anderson and by the Court of Appeal, I am of the opinion that a fair and reasonable award of costs against the unsuccessful Defendant should result in a partial indemnity fee of $2,208.90 plus HST, together with disbursements in the amount of $170.50, plus HST, totalling $2,688.70.
”original signed by” The Hon. Mr. Justice T.A. Platana
Released: September 19, 2016