CITATION: September Seventh Entertainment Ltd. v. The Feldman Agency et al., 2017 ONSC 2208
COURT FILE NO.: 16-58947
DATE: 2017-04-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SEPTEMBER SEVENTH ENTERTAINMENT LIMITED
Jean-Paul Gauthier, Granted Leave to Represent the Plaintiff
Plaintiff
- and -
THE FELDMAN AGENCY, JANN ARDEN, J.A. TOURS INC., BRUCE ALLEN TALENT, JOHNNY REID, JOHNNY MAC ENTERTAINMENT INC., and WALKIN THE DOG LTD. f.s.o. COWBOY JUNKIES
Brian Shiller, for the Defendants
Defendants
A N D B E T W E E N:
JOHNNY REID
Brian Shiller, for the Plaintiff by Counterclaim, Johnny Reid
Plaintiff by Counterclaim
- and -
SEPTEMBER SEVENTH ENTERTAINMENT LIMITED
Defendant by Counterclaim
Jean-Paul Gauthier for the Defendant by Counterclaim, September Seventh Entertainment Limited
COSTS JUDGMENT
[1] Judgment was released January 24, 2017. The claim against the defendants, The Feldman Agency, Jann Arden, J. A. Tours Inc., was dismissed in its entirety. The suit with respect to the remaining defendants was reduced to a determination of liability with damages capped within the Simplified Rules range. The judgment concluded with the usual request for costs submissions in the event unanimity on that issue was not achieved. Not surprisingly, given the conduct of this matter, that was not achieved. The costs submissions have been received and reviewed.
[2] Costs of and incidental to a proceeding within the discretion of the Court: re. section 131(1) of the Courts of Justice Act, R.S.O. 1990, C.43.
[3] Armstrong J.A. in Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), 2004 71 O.R. (3d) 291 (ONCA) at para. 26 stated: “The objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant”. This belief in what is “fair and reasonable” resonates through cost jurisprudence. The belief is particularly important in a day and age where there is widespread concern for access to justice. The Simplified Rules are seen as a matter of achieving this access with the emphasis on a streamlined procedure to achieve amounts less than $100,000.00.
[4] Rule 57.01 sets out a series of general principles which give texture to what is “fair and reasonable”.
[5] Generally speaking, a successful party is entitled to indemnification of their costs. Starting from that premise, the jurist considers: a) the existence of offers to settle (not necessarily limited to formalistic offers of Rule 49); b) the complexity and importance of the issues; and c) the conduct of the party that tended to shorten or lengthen unnecessarily the duration of the proceedings, with an eye to whether some behaviour was improper, unnecessary, and possibly negligent.
[6] Obviously, the last mentioned indicia are to emphasize the necessity for efficiency in the litigation process. This is not a game; it is not an exercise to make litigious life any more difficult than it need be.
[7] There is no denying the fact that the defendants were entirely successful in their motion for summary judgment. Consequently, given precedent it is appropriate that that the successful parties receive their costs. This is especially so when a plaintiff pleads, as the plaintiff did in this case for astronomical damages which had no relationship to the contracts which clearly defined the interaction between the parties. Weak defendants might be intimidated by the amount claimed. Parties who adopt such bully boy tactics in evidently attract costs consequences.
[8] Both sides of the suit have submitted a bill of costs or costs outlines. The defendants additionally provided costs submissions. The plaintiff, with leave, represented by Jean-Paul Gauthier, claims $7500.00 for the 60 hours of preparation by Mr. Gauthier, a non-lawyer, an individual who possesses 20 years of business experience. The hourly rate for Mr. Gauthier would be $125.00 per hour. This was certainly a creative approach, perhaps of the same ilk that generated the astronomical damage figures in the Statement of Claim. That being said, considering a complete lack of success and a clear wording of the performance contracts involved, any such request is for costs for the plaintiff’s corporation is denied.
[9] Turning to the submissions of counsel for the defendants, the hourly rate, claimed by counsel, based on his 24 years’ experience is appropriate. Counsel is correct in stating that there was a grand diminution in the amount of damages sought, a reduction from the stratosphere of millions of dollars to arrange in the Simplified Rules, is a major achievement and is of considerable value.
[10] The issues to be addressed were complex. Precedent with respect to exclusion clauses and limitations of liability had to be explored.
[11] Counsel for the defendants is quite generous in expressing the view that although the action presents as possibility vexatious and frivolous, that presentation does not persae constitute misconduct.
[12] All and all, as indicated at the motion hearing itself, the motion was argued in a civil fashion. Counsel was complementary of the skills and effort demonstrated by Mr. Gauthier. That being said, the motion did not have to be but for the overreaching of the plaintiff.
[13] The effort extended by counsel of approximately 38 hours is entirely reasonable given the complexity of the issues and the voluminous material of the plaintiff. Therefore, the plaintiff shall pay to the defendant $18,480.74, inclusive of disbursements, payable forthwith.
Whitten J.
Released: April 11, 2017
CITATION: September Seventh Entertainment Ltd. v. The Feldman Agency et al., 2017 ONSC 2208
COURT FILE NO.: 16-58947
DATE: 2017-04-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SEPTEMBER SEVENTH ENTERTAINMENT LIMITED
Plaintiff
- and -
THE FELDMAN AGENCY, JANN ARDEN, J.A. TOURS INC., BRUCE ALLEN TALENT, JOHNNY REID, JOHNNY MAC ENTERTAINMENT INC., and WALKIN THE DOG LTD. f.s.o. COWBOY JUNKIES
Defendants
A N D B E T W E E N:
JOHNNY REID
Plaintiff by Counterclaim
- and -
SEPTEMBER SEVENTH ENTERTAINMENT LIMITED
Defendant by Counterclaim
COSTS JUDGMENT
ACRW:js
Released: April 11, 2017