CITATION: 2149629 Ont. Inc. v. The Reg. Mun. of York, 2016 ONSC 6611
NEWMARKET COURT FILE NO.: cv-14-117464-00
DATE: 201601024
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
2149629 Ontario Inc.
Plaintiff
– and –
The Regional Municipality of York
Defendant
Jack B. Berkow and Adam Wygodny, for the Responding Party (Plaintiff)
Douglas O. Smith and Amy Collier, for the Moving Party (Defendant)
Justice S.J. Woodley
COSTS ENDORSEMENT
OVERVIEW
[1] The Plaintiff, 2149629 Ontario Inc. (“214”), commenced an action against the Defendant, the Regional Municipality of York (“Region”), for damages totaling $560,051.00.
[2] For Reasons for Decision dated July 8, 2016 (2149629 Ontario Inc. v. The Regional Municipality of York 2016 ONSC 4510), I granted summary judgment in favour of the Region and dismissed 214’s claim with costs.
[3] This endorsement relates solely to the issue of costs.
Positions of the Parties
[4] The Region seeks costs on a partial indemnity scale fixed at $77,750.85 inclusive of disbursements and taxes.
[5] 214 submits that while the Region is entitled to costs fixed on a partial indemnity scale, the quantum of costs claimed is excessive and inconsistent with the Court’s policies and principles when fixing costs.
[6] In particular, 214 submits as follows:
i) The Region’s costs are excessive and greatly exceed the costs 214 could reasonably be expected to pay. 214’s partial indemnity costs totaled $43,798.33, with counsel called to the Bar in 1975 who is a Certified Specialist in both Civil Litigation and Construction Law; and
ii) The Region unnecessarily lengthened the proceeding through raising the issue of jurisdiction and booking only one day for the Region’s motion and then using the entirety of the day for the Region’s submissions which required all counsel to re-prepare for the motion more than two months after the initial hearing date.
[9] In all of the circumstances, 214 submits that the Region’s costs should be fixed at $35,000.00 inclusive of disbursements and taxes payable on a partial indemnity basis.
[10] The Region replies as follows:
i) 214 failed to include the charges levied by 214’s prior counsel (SR) and if these fees were included the actual fees charged to 214 would be significantly increased;
ii) The issue of jurisdiction was dealt with efficiently and the argument accounted for less than 20 minutes of court time. The argument was not made frivolously and should not impact the quantum of costs awarded; and
iii) The outcome of the summary judgment motion freed up valuable court time and resources that would otherwise have been necessary if the matter proceeded to trial.
The Law Relating to Costs
[11] The general principle is that a successful party is entitled to costs. It is accepted that this general principle should not be departed from unless there is good cause to do so.
Scale of Appropriate Costs/Quantum of Costs
[12] The parties agree that the Region is entitled to costs on a partial indemnity basis. The only issue is the quantum payable.
[13] Pursuant to Rule 57 of the Rules of Civil Procedure. R.R.O. 1990 Reg. 194, I am required to fix costs in all but exceptional cases. This is not an exceptional case and I will fix the costs.
[14] Counsel for the Region provided a Bill of Costs together with a copy of the time dockets detailing the work completed and time spent on the matter.
[15] Counsel for 214 provided a summary of time dockets and invoices rendered by Berkow, Cohen LLP. However, no time dockets or invoices were provided for 214’s prior counsel SR.
Proportionality and Expectations: Review of Time Dockets and Billing Rates
[16] Dealing first with the issue of proportionality, time spent, rates charged and expectations of the parties, I note as follows:
i) Senior counsel for 214 commenced docketing in July of 2015 and docketed 103.3 hours at a cost of $56,403.61;
ii) Senior counsel for the Region commenced docketing in January of 2014 and docketed 103.4 hours at a cost of $43,945.00;
iii) Junior counsel for 214 docketed commenced docketing in September of 2015 and docketed 44.5 hours at a cost of approximately $11,000.00; and
iv) Junior counsel for the Region commenced docketing in January of 2014 and docketed 134.6 hours at a cost of approximately $29,000.00.
[17] Neither the time dockets nor the legal accounts were produced for 214’s prior counsel. 214 claims that prior counsel was minimally involved only drafting page 6 of the claim which would not have significantly increased the actual fees incurred relative to the total fees incurred.
[18] The Region’s time dockets do not support 214’s submission that prior counsel was “minimally” involved. The Region docketed 136 hours prior to 214’s current counsel being retained. The Region’s docket entries detail exchanges between counsel including: receipt of 214’s claim; receipt of interim proposal from 214; receipt of productions; receipt of 214’s Affidavit of Documents; exchange of proposed timetables; emails, telephone conversations, negotiations and meetings between the parties. The Region’s time dockets refute 214’s submission that prior counsel was minimally involved.
[19] With respect to the hourly rates applied, the Region cites the costs guideline published by the Costs Sub-Committee of the Civil Rules Committee and submits that the rates proposed by the guideline as the maximum rate applicable are reasonable for counsel practising in the Toronto area.
[20] In reviewing the appropriate hourly rates I note that the guideline contains the following proviso “…It is further anticipated that the maximum rates would apply only to the more complicated matters and to the more experienced counsel within each category”. (Emphasis added.)
[21] Senior counsel for the Region was Douglas Smith, who has been practising for approximately 21 years. The guidelines propose a maximum rate of $350.00 per hour for lawyers practising 20 or more years and Mr. Smith seeks this rate to be applied to his billings.
[22] While the proviso states that the maximum rate applies to “more experienced counsel within each category” I do not consider the proviso applicable to the “20 or more years” category as further years will not necessarily add extra value, skill or care to the lawyer’s practise.
[23] In the present case Mr. Smith’s presentation was clear, concise and compelling. Mr. Smith requires no further years to sharpen his skills and has earned the right to be paid at the highest rate of the costs guideline.
[24] Junior counsel for the Region was Aimee Collier, who has been practising for 5 years. The guidelines propose a maximum rate of $220.00 per hour for lawyer’s practising less than 10 years. As there is a determined difference in skill and efficiency within this category I find the proviso applicable. However, the maximum is not sought but a lower rate of $200.00 per hour. This hourly fee is within the range of reasonable partial indemnity rates given the excellence of the materials prepared by Ms. Collier and the inherent increased cost of practising law in Toronto.
Delay
[25] With respect to 214’s submissions that the Region unnecessarily lengthened the proceeding through raising the issue of jurisdiction and booking only one day for the Region’s motion and then using the entirety of the day for the Region’s submissions which required all counsel to re-prepare for the motion more than two months after the initial hearing date, I note as follows:
i) The time spent arguing the jurisdiction issue was minimal;
ii) No time was docketed or claimed by the Region between the first and second hearing date for preparation or otherwise; and
iii) The Region moved for summary judgment and was successful in dismissing the claim prior to trial.
[26] In the circumstances, there is no merit to the claim that the Region unnecessarily lengthened the proceeding.
Disposition
[18] In exercising my discretion to determine the appropriate award of costs payable, I have considered the guideline published by the Costs Sub-Committee, the general considerations applicable to calculating partial indemnity costs, the considerations set out at Rule 57 and the issues of proportionality, complexity, and importance of the issues to the parties.
[19] Having reviewed and considered all of the applicable, I find that the Region is entitled to payment of its costs on a partial indemnity scale fixed at $70,313.19, inclusive of HST and disbursements payable within 30 days of today’s date.
CITATION: 2149629 Ont. Inc. v. The Reg. Mun. Of York, 2016 ONSC 6611
NEWMARKET COURT FILE NO.: CV-14-117464-00
DATE: 20160708
ONTARIO
SUPERIOR COURT OF JUSTICE
2149629 Ontario Inc.
Applicant
[7] – and –
The Regional Municipality of York
Respondent
REASONS FOR JUDGMENT
The Honourable Madam Justice S.J. Woodley
DATE RELEASED: October 24, 2016