Court File and Parties
Court File No.: CV-16-548445 Date: 20160921 Superior Court of Justice - Ontario
Re: Autopoietic Telemetric Solutions Ltd., Applicant And: Christian Chukwuedozie Chijindu, Respondent
Before: Lederman J.
Counsel: Josephat O. Nwabuokei, for the Applicant Bola Adetunji, for the Respondent
Heard: In Writing
Costs Endorsement
[1]
Background
The Applicant was the successful party. It obtained a Declaration that the Respondent solicitor was only entitled to bill and retain the sum of $40,370.71 (being “10% of recovered money”) for the legal services that he provided to the Applicant pursuant to the Retainer Agreement which governed the relationship. The Court rejected the Respondent’s position that he was entitled to retain the sum of $247,548.96, being 10% of the judgment amount.
[2]
Positions of the Parties
The Applicant seeks its costs of the application on a full indemnity basis which amount to $43,222.50 plus disbursements of $7,138.82. Its substantial indemnity costs amount to $42,205.50 and its partial indemnity costs amount to $36,018.75.
3The Respondent solicitor acknowledges that the Applicant is entitled to its costs, but takes issue with the number of hours spent by the Applicant’s counsel and his experience at the Ontario Bar and submits that the nature of the dispute was relatively uncomplicated. The Respondent, however, does not suggest what amount is appropriate.
[4]
Analysis and Disposition
I am in agreement with the Respondent’s submission that the matter in issue was not complex. In fact, the interpretation of the Retainer Agreement was straightforward and should have been resolved without the necessity of a court application by his client.
5The Applicant client made a number of offers to settle and as late as June 11, 2016, the client was prepared to settle the matter if the Respondent solicitor would pay $150,000 instead of the balance of $196,847.74 to the client.
6Having regard to the fiduciary nature that exists between a solicitor and client, it was unconscionable for the Respondent solicitor to take the position that 10% of the judgment awarded would constitute his fee when the Retainer Agreement clearly provided for the contingency arrangement of 10% of the recovered amount.
7In these circumstances, there is justification for an award of costs based on an elevated scale. Nevertheless, the amount must be reasonable and the factors in Rule 57.01(1) of the Rules of Civil Procedure are to be taken into account. Having regard to the principles of proportionality and the fact that the number of hours spent by counsel are somewhat excessive, I have concluded that an award of costs in the total amount of $38,000 inclusive of disbursements and applicable taxes is appropriate. Such costs are to be paid by the Respondent solicitor to the Applicant within 30 days.
Lederman J.
Date: September 21, 2016