CITATION: Lemesani v. Lowerys Inc., 2016 ONSC 997
COURT FILE NO.: CV-14-0109
DATE: 2016-02-09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Michael Lemesani,
Jordan R.D. Lester, for the Plaintiff
Plaintiff
- and -
Lowerys Inc.,
Dan Matson, for the Defendant
Defendant
HEARD: Via written submissions
Regional Senior Justice D. C. Shaw
Decision On Costs
[1] This is a decision on the costs of a motion.
[2] The plaintiff brought a motion for leave for an examination for discovery of a second representative of the corporate defendant.
[3] The motion was granted, with limits on the scope and duration of the second discovery.
[4] The plaintiff seeks costs, as the successful party. The plaintiff submits that costs should be awarded on a substantial indemnity basis because of unreasonable delay on the part of the counsel for the defendant in responding to the request for a second discovery and because the representative of the defendant who attended the first discovery was not properly prepared to answer questions on documents related to the plaintiff’s long term disability claim.
[5] The plaintiff asks for substantial indemnity costs of $2,798.74, inclusive of fees of $2,283 and disbursements of $218.72 and HST.
[6] The fees are comprised of 4.4 hours of lawyer’s time, at $208 per hour, and 9.5 hours of clerk time at $144 per hour. Counsel for the plaintiff has two years’ experience. His partial indemnity rate is shown at $147 per hour. His clerk’s partial indemnity rate is shown at $80 per hour.
[7] The defendant proposes three alternative dispositions on costs.
[8] The defendant submits, firstly, that no costs should be awarded because each party advanced a reasonable argument, seeking the court’s guidance, and the unsuccessful party should not be penalized for doing so.
[9] Secondly, the defendant submits that if the plaintiff is awarded costs, costs should be in the cause because, until the examination is complete, it will not be known if the examination will be useful.
[10] Thirdly, if costs are awarded, the defendant submits that the sum of $500 for a routine procedural motion is appropriate. The defendant files its own bill of Costs showing total fees on a partial indemnity scale, inclusive of HST, of $737.33.
Discussion
[11] The plaintiff was successful on his motion. I see no basis on which to depart from the usual practice that the successful party is presumptively entitled to his costs.
[12] I also see no basis to award costs in the cause. Rule 57.03 provides that on the hearing of a contested motion, unless the court is satisfied that a different order would be more just, the court shall fix the costs of the motion and order them to be paid within 30 days. Rule 57.01(7) provides that the court shall adopt the simplest, least expensive and most expeditious process for fixing costs. This was an uncomplicated procedural motion. Costs of the motion should reflect that fact.
[13] Costs in this case should be fixed on a partial indemnity basis. Substantial indemnity costs have traditionally been reserved for cases where the court wishes to show its disapproval of conduct that is aggressive or contumelious. See Apotex v. Egis Pharmaceuticals and Novopharm Ltd. (1991), 1991 CanLII 2729 (ON SC), 4 O.R. (3d) 321 (Ont. Gen. Div.), at p. 325. Conduct of defendant’s counsel did not reach that level. Moreover, the conduct complained of related to a proposed second examination and service of a notice for that second examination by the plaintiff for which leave had not been granted.
[14] With respect to quantum, the hours docketed by counsel for the plaintiff and his partial indemnity hourly rate are reasonable. The time spent and the total of counsel’s fee are approximately equal to that of defendant’s counsel. However, defendant’s counsel did not file responding materials on the motion. The plaintiff was required to do so. The plaintiff’s materials were prepared by a clerk, which was an efficient use of time. The clerk’s partial indemnity rate and time spent were also reasonable. However, some of the time docketed by the clerk appears to be secretarial in nature. Secretarial work should be subsumed in counsel’s hourly rate as part of overhead.
[15] An award of costs is a matter in the discretion of the court by virtue of s. 131(1) of the Courts of Justice Act. The overriding principle is one of reasonableness. Costs should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party rather than a mathematical calculation of time spent or the rates charged by the successful party’s lawyer. See Zesta Engineering v. Cloutier, 2002 CanLII 25577 (ON CA), [2002] O.J. No. 4495 (C.A.), at para. 4.
[16] In my opinion, it would be fair and reasonable to award the plaintiff costs of this motion in the amount of $1,000 for fees, plus disbursements of $169.56, plus applicable H.S.T. (I have not allowed disbursements of $24 claimed for laser printing.) Costs shall be payable within 30 days.
[17] I conclude by noting that counsel filed their submissions and Bills of Costs on September 16 and 17, 2015, respectively, well within the time limits set out in my endorsement of September 1, 2015. However, these documents did not find their way from the Registrar’s Office to chambers until the week of February 1, 2015. That is why there has been an inordinate gap between the release of my endorsement determining the motion and the release of this decision on costs. None of that delay is attributable to counsel.
___”original signed by”
The Hon. Mr. Justice D. C. Shaw
Released: February 9, 2016
CITATION: Lemesani v. Lowerys Inc., 2016 ONSC 997
COURT FILE NO.: CV-14-0109
DATE: 2016-02-09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Michael Lemesani,
Plaintiff
- and -
Lowerys Inc.,
Defendant
DECISION ON COSTS
Shaw R.S.J.
Released: February 9, 2016
/mls