Court File and Parties
Court File No.: 11-52990 Date: 2017-05-26 Ontario Superior Court of Justice
Between: LOUIS SIROIS and CHANDRA MARTENS, Plaintiffs – and – PAMELA ADRIANA WESTON in her capacity as power of attorney for property of RANDALYN LORRAINE WESTON, and BRIAN WILSON and TANYA LEMCKE, Defendants
Counsel: Christopher S. Spiteri, for the Plaintiffs Hans Engell, for the Defendant, Tanya Lemcke
Heard: By written submissions
Costs Endorsement
Toscano Roccamo J.
[1] The Defendant (Lemcke) hereinafter (“The Defendant”) successfully moved for summary judgment on the grounds that the Plaintiffs’ action for damages was prescribed by the statutory limitation period.
[2] The Plaintiffs sued the Defendant, a real estate agent, more than two years after learning that she failed to inform them that an energy company had registered an option to build a solar farm next to their property. They had already commenced an action against their own solicitor the Defendant, Brian Wilson, within months of the purchase of the property.
[3] The Defendant claims partial indemnity costs of $22,405.07 inclusive of fees and HST, plus total disbursements of $7,210.72.
[4] The claim for costs does not include fees in relation to the summary judgment motion for which I awarded the Defendant costs as agreed between the parties, fixed at the all-inclusive amount of $5,000.00.
[5] The Defendant has already received the sum of $3,200.00 paid by LawPro for costs in relation to a cross claim by the Defendant Wilson. As such, this amount should be offset against the Bill of Costs to arrive at a net partial indemnity claim for costs in the approximate amount of $19,000.00 plus disbursements.
Application of the Factors in Rule 57.01(1)
[6] The parties did not refer me to any Rule 49 Offers to Settle. Consequently, I refer only to the costs principles in play in the exercise of my discretion to fix costs.
[7] Having regard to the principal of indemnity, I note that the Plaintiffs take no issue with the hourly rates charged by counsel for the Defendant, which are comparable to those of their own counsel on the summary judgment motion.
[8] Second, I also note that the Plaintiffs’ Bill of Costs does not refer to partial indemnity rates, but only actual rates charged to the Plaintiffs in the total amount of $33,315.00. The Bill of Costs excludes hours spent in relation to the summary judgment motion. However, it does not include time spent for preparation and attendance at mediation. The Defendant’s submissions incorrectly posit that the Plaintiffs’ Bill of Costs failed to capture time spent on preparation and attendance for Examinations for Discovery. Nevertheless, it may be inferred that, factoring in $5,000.00 for mediation costs, the Plaintiffs would have incurred actual costs in a range of $38,500.00, or partial indemnity costs of between $19,250.00 and $23,000.00.
[9] There is no issue taken that the Defendant was entirely successful on the summary judgment motion, and that the matter would have been of some importance to the Defendant Lemcke’s reputation. On the other hand, the Plaintiffs raise concerns with respect to the amount of costs claimed, which they argue lie outside the Plaintiffs’ reasonable expectations per Boucher v. Public Accountants Council for the Province of Ontario, having regard to the following:
- The Defendant was only added to the proceedings approximately two years after the action was commenced. By contrast, the Plaintiffs’ costs reflect efforts in relation to three Defendants in meeting their burden of proof.
- The Defendant has recovered not only costs of the summary judgment motion, but has also received costs of $3,200.00 paid by LawPro in relation to the cross claim brought by the Defendant Wilson.
- The motion was not complex. The facts were straight forward, and mainly involved an application of the law. It took under two hours to argue.
- The Defendant could have brought the motion for summary judgment at first instance, and elected thereby to incur increased and unnecessary costs in the proceedings.
- Finally, as a residual matter relevant to costs, the Plaintiffs note the Defendant admitted that she did not believe the property was suitable for the Plaintiffs, and said nothing to them.
Conclusions
[10] I fail to see how the Defendant’s admission had any real impact on the costs of the action, which pertained to the failure to advise of the option to build a solar farm registered on title by the energy company adjacent to the property purchased by the Plaintiffs.
[11] In my opinion, it was also reasonable for the Defendant’s counsel to incur the costs of documentary and oral discovery in order to ascertain the strengths and weaknesses of a defence based on the statutory limitation period. Moreover, the Plaintiffs claimed both general and special damages without specifying quantum. Given that the action was not brought under the simplified rules, the potential exposure was over $100,000.00 in damages.
[12] On the other hand, I accept that the Defendant would have known the case she had to meet without incurring the costs of preparation and attendance at mediation, and could have elected to proceed with her summary judgment motion at any earlier stage in the proceedings.
[13] Under the circumstances, in light of costs already received by the Defendant and costs unnecessarily incurred in relation to the mediation, the Defendant’s claim for fees should drop from $19,827.50 to $10,220.50 which I round down to the sum of $10,000.00 inclusive of HST. To this amount, I award the Defendant her disbursements of $7,210.72 with which the Plaintiffs take no issue.
[14] As such, the Defendants are awarded total costs in the amount of $17,210.72 inclusive of taxes and disbursements.
Toscano Roccamo J. Released: May 26, 2017