Court File and Parties
COURT FILE NO.: 05-CV-282960 CM2 DATE: 20160921 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jacob Wesley Eade and Jesse Allan Eade, minors under the age of 18 years by their litigation guardian Shawn W. Eade, Shawn Eade and Tanaya Eade, Plaintiffs AND: The Estate of Ellen Browne, Deceased, Linda Brown and Ruth Ina Piccitto, Estate Trustee of the Estate of John Piccitto, Deceased, Defendants
BEFORE: S. F. Dunphy, J.
COUNSEL: T. McCarthy, for the Statutory Third Party State Farm G. Abogado, for the Defendants Estate of Ellen Browne and Linda Browne
HEARD: February 17-23, 2015
(Revised) Costs ENDORSEMENT
[1] At the conclusion of a five day jury trial before me in Toronto, the jury returned a verdict in favour of the defendants and against the Statutory Third Party who stood for the purpose in the plaintiff’s shoes. The trial concluded on February 23, 2015.
[2] The parties expected to be able to reach an accord regarding costs, so I reserved my decision on costs at the time. Discussions clearly took longer than anticipated and the expected consensus failed to emerge. In August of this year, I was asked by the successful defendants to fix costs in light of the failure of settlement discussion. I have received and reviewed the written submissions of both parties.
[3] The claim was originally brought by the plaintiff as passenger of a motor vehicle involved in an very serious accident. Although the plaintiff Mr. Eade was owner of the vehicle in which he was a passenger, it was actually driven at the time by Mr. Kane. State Farm as statutory third party defended the action against Mr. Kane. There were claims of contribution alleging that the other vehicles involved in this terrible collision bore some or all of the responsibility for it. Two other vehicles were involved in the collision and the drivers of both vehicles unfortunately died of their injuries.
[4] The issue on the trial was solely whether the Estate of Ellen Browne (owner and driver of one of the other vehicles) bore any responsibility for the accident or whether the accident was solely the responsibility of Mr. Kane (who had disappeared and could not be located). The jury verdict determined that Mr. Kane was solely responsible and absolved the Estate of Ellen Browne of any degree of contributory negligence.
[5] For the purposes of the trial, State Farm was deemed the “plaintiff” and the Estate of Ellen Browne and Linda Browne were designated as defendants. Damages were neither in issue nor assessed – liability was the only issue determined.
[6] Mr. Kane having been determined to be solely responsible for the accident as regards the injuries suffered by Mr. Eade (the actual plaintiff), the Browne defendants were wholly successful on this bi-furcated trial and are entitled to their costs.
[7] The defendants submit they are entitled to costs fixed on a partial indemnity scale. State Farm offers no serious objection to this disposition, suggesting only that both insurers should bear their own costs. I find no reason to depart from the general rule here and find the Browne defendants are entitled to their costs of the trial on a partial indemnity scale.
[8] The defendants presented evidence of an offer to settle on the basis of a dismissal of the contribution claim without costs. The offer was made outside of the time limits prescribed by Rule 49.10 of the Rules of Civil Procedure. Mr. Abogado does not submit that he should be entitled to a higher scale of costs as a result of this offer and the offer therefore appears to me to be largely moot in the context of the issues I have to determine. I see no reason to depart from Rule 49.10 of the Rules of Civil Procedure in this case, although clearly I have discretion to do so in an appropriate case where circumstances warrant.
[9] Mr. Abogado presented an outline of costs detailing fees of $57,985.95 (including HST) and disbursements of $40,741.00 (also including HST) for a total of $98,726.95. The partial indemnity rates suggested by Mr. Abogado range from $150-$200/hr for counsel having between 4 and 25 years’ experience (at the time of trial) and $80/hr for a law clerk. I find the proposed rates to be fair and reasonable having regard to the experience of counsel. I note that no particular issue is taken with the proposed rates by State Farm either.
[10] State Farm raises two issues. Firstly, they suggest that the disbursement of $31,406.38 for the forensic engineer is excessive, suggesting an allowed amount of $15,000 plus HST instead. I agree with this submission. The forensic engineer offered opinion evidence that was entirely dependent upon data (measurements of the accident scene) that was not proved in evidence such that I ruled that substantially all of the evidence of the expert was to be disregarded by the jury. A substantial reduction in this disbursement is called for as the evidence produced by the defendant’s expert was almost entirely without value. The amount suggested by State Farm as reasonable is quite frankly more than I might have otherwise been inclined to allow, but I am content to accept the amount proposed by State Farm in this case.
[11] I would therefore allow the defendants disbursements in the amount of $22,201.81 including HST.
[12] Secondly, State Farm suggests that two sets of counsel docketing time on this trial was excessive and that the time dockets are excessive in the aggregate. It is suggested that I allow only Mr. Abogado’s docketed time and that his time should be reduced to a total of 100 hours (vs. 146.5 hours actually docketed). While I agree that the issues were fairly discrete and simple, I cannot agree to an arbitrary reduction of hours in the order of magnitude suggested. I am however persuaded that some reduction is reasonable in the circumstances having regard to the complexity of the issues, the essentially forensic nature of the evidence and the small number of witnesses. I would reduce the claimed fees to $45,000 plus HST for a total of $50,850.00.
[13] I therefore fix the defendants costs at $73,051.81 all inclusive. State Farm has taken no objection to this amount being payable by it as Statutory Third Party directly as requested by the defendants and I so order.