COURT FILE NO.: 2080/10 DATE: 2017/07/06

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Richelle Milloy Plaintiff

Margaret A. Hoy, for the Plaintiff

• and -

Complex Services Inc. Defendant

Mitchell R. Smith, for the Defendant

The Honourable Justice T. Maddalena

COSTS ENDORSEMENT

[1] The trial of this matter concluded on January 20, 2017. This was an approximate 10-day trial. I released written reasons May 11, 2017. I have now received and reviewed written costs submissions from both counsel.

The Position of the Plaintiff

[2] The plaintiff was the successful party and is claiming costs on a partial indemnity basis.

[3] According to the plaintiff’s bill of costs, substantial indemnity fees and disbursements are $90,992.74.

[4] The plaintiff claims costs on a partial indemnity basis, which she states should be fixed at $79,517.59 inclusive of fees, disbursements and HST.

The Position of the Defendant

[5] The defendant states that the plaintiff recovered less than one-third of the damages award claimed by her. Thus, the defendant submits that the plaintiff should not be in a position to obtain costs that are greater than the damages award.

[6] The defendant also asserts that the plaintiff’s actions throughout the litigation at times caused unwarranted delays. Two status notices for delay were issued by the court. On each occasion, pleadings were reinstated.

[7] The defendant states that there were additional costs incurred as a result of the plaintiff’s motion at the commencement of trial.

[8] The defendant states that costs should be awarded to the plaintiff on a partial indemnity basis fixed at $20,000, plus recoverable disbursements, plus HST (which is calculated in the approximate range of $26,134 rounded).

Analysis

[9] The plaintiff was the successful party and as such is entitled to costs in accordance with rule 57 of the Rules of Civil Procedure.

[10] The plaintiff’s bill of costs does not provide the details or breakdown of the particulars of work done.

[11] I am mindful of those principles regarding costs enunciated in rule 57.01(1) of the Rules.

[12] Also, in the case of Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (CA), the court noted that:

“The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by the actual costs incurred by the successful litigant.”

[13] Further, in the case of Zesta Engineering Ltd. v. Cloutier, the court noted at page 3:

“In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.”

[14] In addition, I note that the first two days of trial dealt with the plaintiff’s motion to amend her pleadings. I am satisfied that the plaintiff’s bill should be discounted in the amount of approximately $3,800 as this amount represents the defendant’s partial indemnity costs for the motion of the plaintiff returnable at trial.

[15] Secondly, I note that the matters at issue in the trial were of average complexity and there were no novel issues or issues dealing with public policy.

[16] Thirdly, the court notes that the litigation was commenced as an ordinary procedure, then amended and continued under the simplified procedure rules. The amount recovered was $32,137.18.

[17] In the case of Miller v. ABM Canada Inc., 2014 ONSC 5549, the court noted in paragraph 14 as follows:

Counsel for the defence quite properly relies on the observations by Wilson J. in Trafalgar Industries of Canada Ltd. v. Pharmax Ltd. (2003), 64 O.R. (3d) 288, as it is a decision dealing with costs following a simplified procedure trial. I agree with the observations to the effect that in simplified procedure cases the costs must be reasonable, and must be proportionate to the amount awarded. At paragraph 22 it was held to be “incumbent upon counsel to take precautions to ensure that the costs of the trial does not exceed the amount in dispute”. There, as here, the amount claimed for costs far exceeded the amount of recovery at trial.

[18] According to the plaintiff’s bill of costs, the counsel and law clerks spent approximately 210 hours on this litigation (inclusive of seven hours of travel time). This is over five full weeks of preparation. I consider this excessive in view of the amount finally recovered.

[19] Therefore, given all the circumstances of this case, I fix costs to be paid by the defendant to the plaintiff at $30,000 inclusive of fees, disbursements, and HST.

Order

[20] The defendant shall pay to the plaintiff costs fixed at $30,000 inclusive of fees, disbursements, and HST.

Maddalena J.

Released: July 6, 2017