Court File and Parties

COURT FILE NO.: CV-14-505796 DATE: 20161004 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Teck Min Chung, Plaintiff – and – H & E Copy Services Inc., Defendant

Counsel: Heidi Suter for the Plaintiff Matthew J. Garrett for the Defendant

HEARD: June 10 and 13, 2016

Costs award on Summary judgment motion

[1] In a decision released on June 29, 2016 I dismissed the defendant’s motion for summary judgment and I directed that the two unresolved issues would be decided by me in a one-day trial. [1]

[2] As I noted in my decision, the reason for a trial – “albeit a hybrid trial to avoid duplication” [2] - was two-fold:

• To help clarify or explain the so-called discrepancy in Herald’s evidence. In addition to recalling Herald, counsel may also wish to adduce fresh evidence from family members (such as the mother) or others that can assist the court in this regard; and,
• To allow the plaintiff the opportunity to claim unjust enrichment, as was discussed during the submissions following the mini-trial. [3]

[3] I indicated at a follow-up case conference that the plaintiff was entitled to the costs of the summary judgment motion. But because some of the filed material would be useful at the upcoming trial, the plaintiff could only claim the “costs thrown away” on the actual motion.

[4] The plaintiff seeks to recover $18,063 including taxes, on a partial indemnity basis, for the costs thrown away on the summary judgment motion. The defendant says that the costs award should be no more than $1500.

[5] In my view, the appropriate costs award is somewhere in the middle. I think it fair and proper to defer the fees and disbursements relating to the evidentiary portion of the summary judgment motion (that is the motion records, affidavits and cross-examinations) to the trial because much if not all of this backdrop remains relevant for the two issues that remain. However, the legal argumentation component (the legal research, the factums, the books of authorities) is now pretty much spent. New arguments will have to be made at the trial about the so-called discrepancy in Herald’s evidence and about the plaintiff’s claim for unjust enrichment.

[6] In my view, it is not unreasonable to suggest that the time spent on “the law,” that is on legal research, factum drafting and case law compilation, can be claimed by the plaintiff as “costs thrown away” on the summary judgment motion.

[7] I have reviewed the plaintiff’s costs outline and note the following:

(i) The time spent by Ms. Suter solely on matters relating to legal research, factum drafting and case law compilation is 24.6 hours. Given her date of call, Ms. Suter is entitled to charge $350 per hour under the Grid. [4] The total claim for legal fees is therefore $8610. I will not include the court attendances because they dealt with both evidentiary matters and legal argumentation. (ii) The disbursements that relate solely to the three items just noted (including courier charges etc.) total $258.55. (I did not include any items that, for example, blended courier charges for “motion records and factums”.) (iii) The total in fees and disbursements “thrown away” on the unsuccessful summary judgment motion is $8868.55. With HST the total amount is $10,021.46.

[8] I therefore find it fair and reasonable to award the plaintiff $10,021.46 in costs thrown away on the summary judgment motion and min-trial. Costs are therefore fixed at $10,021.46 all-inclusive, payable forthwith by the defendant to the plaintiff.

[9] I thank counsel for their detailed submissions.

Belobaba J.

Date: October 4, 2016

Footnotes

[1] Chung v. H & E Copy Services, 2016 ONSC 3880. [2] Ibid., at para. 31. [3] Ibid., at para. 31. [4] Ms. Suter’s actual hourly rate as billed to her clients is $375. It does not follow from this that she is required to charge only $250 on a partial indemnity scale. Mr. Suter is entitled to the full benefit of the Grid which provides that a $350 hourly rate, given her call date, is fair and reasonable.