Court File and Parties

CITATION: Abuajina v. Haval, 2016 ONSC 725

COURT FILE NO.: CV-13-485514

DATE: 20160201

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MAZEN ABUAJINA, Plaintiff

AND:

RANCHO REHANI HAVAL, Defendant

BEFORE: Mr. Justice Graeme Mew

COUNSEL: Chris Nicolis, for the Plaintiff

Eric R. Levin, for the Defendant

HEARD: In Writing

COSTS ENDORSEMENT

[1] In reasons for decision delivered on 31 December 2015 (2015 ONSC 7938) I dismissed the defendant’s motion for summary judgment. I indicated (at para. 51) that I was provisionally of the view that the defendant should pay the plaintiff’s costs of the summary judgment motion on a partial indemnity scale. However, I left it open to the parties to make submissions to me for a different disposition of costs.

[2] The plaintiff seeks an award of substantial indemnity costs.

[3] The defendant argues that costs should be awarded on a partial indemnity scale and that the quantum of costs sought by the plaintiff is excessive.

Scale of Costs

[4] While it is always open to the court, in the exercise of its discretion, to make an award of substantial indemnity costs if the circumstances warrant it, Rule 20.06 expressly addresses costs sanctions for improper use of the summary judgment rule and provides:

20.06 The Court may fix and order payment of the costs of a motion for summary judgment by a party on a substantial indemnity basis if,

(a) the party acted unreasonably by making or responding to the motion; or

(b) the party acted in bad faith for the purpose of delay.

[5] Since the decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, there has been an increased incidence of motions for summary judgment on the issue of liability brought by defendants in motor vehicle accident cases.

[6] There is no reason in principle why such motions should not be brought. If they are successful, considerable savings of costs will accrue to the parties, and the judicial resources which might otherwise be devoted to the case can be deployed elsewhere.

[7] However, if the motion for summary judgment is unsuccessful, an additional layer of expense (which will often be significant) is added to the overall cost of the litigation. This may be less of a concern to institutional litigants, e.g. insurers, who can or easily afford to “win some, lose some” than it is to plaintiffs.

[8] Where it should have been obvious to the unsuccessful moving party at the time when the motion was brought that it stood virtually no chance of success, a substantial indemnity costs would be appropriate: Mawji v. Accident Insurance Co., 2010 ONSC 2146.

[9] In considering costs of these motions, the court should also be vigilant for potential abuse. Summary judgment motions which appear to be motivated primarily by a desire to jump the queue on the trial list, or to get around a jury notice, may be viewed less charitably if the party bringing the motion is not successful.

[10] In the present case, there were two very different versions of events presented by the plaintiff and the defendant. However, there was also an independent witness, whose account was generally supportive of the defendant’s version of events.

[11] Ultimately, I found that the evidentiary record was not sufficient for me to comfortably be able to resolve the issue of liability on a summary judgment motion and, for the reasons given by me previously, I declined to use the additional fact finding powers under Rule 20.04(2.2). Nevertheless, I would characterise the defendant’s motion as a credible attempt. Furthermore, I did not discern any improper motivation on the part of the defendant in bringing the motion.

[12] Before the motion was heard, the plaintiff offered to settle the motion on the basis that it should be withdrawn, with payment of the plaintiff’s costs to be agreed or ordered by the court. Rule 49.10 does not apply to motions. In any event, as the plaintiff was the responding party on the motion, I would not regard the offer as grounds for awarding the plaintiff substantial indemnity costs.

[13] The motion was reasonably brought and, as such, costs should be awarded on a partial indemnity scale.

Quantum of Costs

[14] The plaintiff claims a total of $9,763.04 (inclusive of HST and disbursements). Some 29.8 hours of time is claimed in respect of reviewing, analysing, drafting and preparing for the motion.

[15] The defendant takes issue with the amount of time spent for preparation and also challenges five hours claimed by the plaintiff for travel time.

[16] If one excludes the travel time of five hours, the total time claimed is 24.8 hours. When consideration is given to the fact that, if successful, the motion for summary judgment would have ended the plaintiff’s claim, I do not find the time spent by the plaintiff’s lawyer unreasonable. I note that he has over 20 years of experience. Although none of the work appears to have been delegated to a fee earner with a lower hourly rate, the rate claimed by the lawyer for the plaintiff, $251.25 per hour, is also reasonable.

[17] The costs associated with the plaintiff’s counsel, who practises in London (Ontario), for attending a court in Toronto are more problematic.

[18] A review of the paragraphs in Mark M. Orkin, The Law of Costs, 2nd ed. (Toronto: Canada Law Book, Looseleaf) at § 222.3 demonstrates a range of judicial views on whether a party’s choice of out-of-town counsel should be visited upon an opposing party in the form of costs awards for travel time and expenses. A common approach is to allow travel time at half of the lawyer’s usual hourly rate: see, for example, Chevrier v. Mulgrue, 2013 ONSC 5677 at para. 8; Charron v. Penske Truck Leasing Canada Inc., [2004] O.J. No. 458 (S.C.J.) at para. 22 (additional travelling costs incurred by Toronto counsel attending court in Ottawa together with the time taken during such travel “on a reduced basis” included in costs award); Mosey v. Lally Group Ltd., [2002] O.J. No. 2161 (S.C.J.) at para. 9.

[19] In the present case, I note that counsel travelled from London to Toronto and back by train. One of the great benefits of train travel is that it affords the opportunity to get work done particularly if, as I suspect was the case, given by the amount claimed, counsel travelled first class. The defendant, knowing that the plaintiff’s lawyer was in London, could have reasonably anticipated that if his motion was unsuccessful, the fees and expenses incurred by the plaintiff would include travel.

[20] On an elective motion such as this, it does not strike me as unreasonable to require the defendant to make a contribution towards travel time and expense. However, given the circumstances, and the availability of regular train service between London and Toronto, which would have minimised the amount of “down time” while travelling, I would allow the entire travel disbursement, but limit the fee element to one-third of the time spent.

[21] I would add that different considerations may apply when the party seeking the costs of a motion is a moving party, or where the issue of travel fees and expenses is raised in the context of the action as a whole. The awarding of costs involves the exercise of discretion and consideration of the overall circumstances of the event concerned.

Result

[22] Taking into account the foregoing, I fix the partial indemnity costs payable by the defendant to the plaintiff in the all-inclusive amount of $8,500.

Graeme Mew J.

Date: 1 February 2016