Court File and Parties
Court File No.: 20018/16 Date: 2017-02-15 Ontario Superior Court of Justice
Re: JAMES WALLBRIDGE, ALMEDA WALLBRIDGE and WALLBRIDGE, WALLBRIDGE, Plaintiffs And: FAY BRUNNING and WILLIAMS-LITIGATION LAWYERS, Defendants
Before: Rasaiah J.
Counsel: G. Adair, Q.C., Counsel for the Plaintiffs S. Secord, Counsel for the Defendant, Fay Brunning M. Kestenberg, Counsel for the Defendant, Williams-Litigation Lawyers.
Heard: Written submissions
Decision on Costs
[1] Further to my decision released December 20, 2016, the parties were unable to resolve the issue of costs.
[2] The defendant Williams seeks costs.
[3] The defendant Williams seeks costs on a substantial indemnity basis in the amount of $24,516.68 ($19,232.60 for fees, plus $2,500.24 H.S.T. on fees, plus $2,550.13 for disbursements, plus $233.71 H.S.T. on disbursements) or in the alternative, costs on a partial indemnity basis of $21,164.73 ($16,266.27 for fees, plus $2,114.62 H.S.T. on fees, plus $2,550.13 for disbursements, plus $233.71 H.S.T. on disbursements).
[4] The plaintiffs submit that in all of the circumstances, costs on a partial indemnity scale, in the amount of $12,500 for fees plus H.S.T. and disbursements (except airplane fare) are appropriate.
[5] Based on the following, I am exercising my discretion to, and hereby award, costs to the defendant Williams on a partial indemnity basis in the amount of $14,000 plus H.S.T. of $1,820 plus disbursements of $1,091.30 plus H.S.T. of $44.06 for a total of $16,955.36.
[6] The defendant Williams was successful on the summary judgment motion, as acknowledged by the plaintiffs.
[7] The plaintiffs further acknowledge that the defendant Williams is entitled to costs of the motion and of the action.
[8] The amount of damages that was being claimed by the plaintiffs was significant, namely $15,000,000 collectively. The action was dismissed as against the defendant Williams.
[9] The issue in the case was narrow but important; this is not disputed by either party.
[10] The issue of the potential liability of lawyers practicing in association for defamation in the particular circumstances of this case was without specific precedent. The letterhead of the defendant William was used.
[11] The work completed on behalf of the defendant Williams on the action and motion was completed by Mr. Kestenberg, a senior counsel, and two junior counsel, Mr. Hershtal and Mr. Parker. The experience Mr. Kestenberg is 40 years, Mr. Hershtal, 7 years, and Mr. Parker, less than one year. The plaintiffs appear to have had three counsel also working on its file.
[12] The defendant William’s counsel’s rates reflect reduced rates because the defence is funded by LawPro. Other than submitting that Mr. Kestenberg’s substantial indemnity rate was high, the defendant did not otherwise dispute the rates presented by the defendant Williams. I am satisfied the rates claimed are reasonable.
[13] The hours spent by defendant Williams counsel may have been properly divided between junior and senior counsel as is suggested, but it is not clear by the costs outline, which counsel completed what work. The costs outline indicates that approximately 74 hours was spent.
[14] The proceedings regarding the claims made against the defendant Williams were not complex. The summary judgment motion itself and the materials required to be filed, and the steps regarding cross-examination on the affidavit prior to the hearing were not complex, or drawn out, or delayed.
[15] While the plaintiffs state the action itself was simply at the exchange of pleadings, I appreciate that for the defendant Williams, in preparing its position and pleadings it involved the additional step of discussions with Ms. Secord.
[16] The defendant Williams argues that all counsel for all parties were located in Toronto and that the plaintiffs refused to consent to transfer the action to Toronto; and that this refusal resulted in increased costs and complexity for filing documents and necessitated travel for the motion, claimed at $1,458.83. I am of the view that there are many other considerations regarding transfer of a case. I note that the costs outline includes an entry regarding review of the file regarding ability to transfer the defamation action. No such motion was brought and determined on this issue and I am of the view that it is inappropriate for me to rely on this factor in this case in exercising my discretion. Further, in any event, on the evidence filed, the defendant Williams has not established that the refusal was unreasonable and/or that there was significant complexity for filing documents.
[17] I am of the view that 74 hours is more than what the plaintiffs ought to have expected given my findings that the issue was narrow and the proceedings not complex as asserted; and further given the steps that were taken/the stage in the action; the steps that were taken for the summary judgment motion and cross-examination; the time spent arguing the motion; and my review of the materials prepared and filed.
[18] I considered that on two occasions prior to the motion, the defendant Williams corresponded with the plaintiffs about a consent to a without costs dismissal of the action; making reasonable efforts to resolve the dispute. The letters were not formal Rule 49 offers. The first letter was dated July 7, 2016, and it discusses obtaining instructions for a consent to a without costs dismissal. The second letter was dated September 13, 2016 with a clear statement that the defendant Williams was prepared to consent to a without costs dismissal. It was rejected. Thereafter, in a letter dated September 16, 2016, it can be interpreted that Mr. Kestenberg set out an anticipation that the defendant Williams would still be prepared to walk away without costs, but likely only for a day or two after September 16, 2016 and no more (September 18, 2016). The motion was argued September 23, 2016.
[19] The first said letter came approximately 1 ½ months after the claim was issued and one month prior to completion of service and filing of the statement of defence based on the filing dates of the pleadings. The second said letter was sent approximately a little over a month after the statement of defence was already filed. The cost outline does not set out the dates work was performed.
[20] I have balanced all of the above, and based on balancing all of the above, I am of the view that the amount ordered is reasonable and fair, and what an unsuccessful party could reasonably expect to pay in relation to the steps taken in the action, and the motion.