Court File and Parties

COURT FILE NO.: CV-16-6623 DATE: 2017/07/12

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

THE MUNICIPALITY OF WEST NIPISSING Applicant

Counsel: Michael M. Miller, for the Applicant

• and -

PIERRE OLIVIER-NORMAND LAFOND and MAURICE POISSON Respondents

Counsel: Frank M. Falconi, for the Respondents

HEARD: May 15, 2017

BEFORE: Ellies J.

REASONS FOR DECISION ON COSTS

OVERVIEW

[1] For reasons released on May 29, 2017 (2017 ONSC 3097), I granted the applicant’s (the “Municipality”) request for an injunction restraining the respondents from operating an automobile repair shop at an address in Sturgeon Falls. With respect to the issue of costs, I provided the parties with an opportunity to make written submissions, in the event that they were unable to reach an agreement on the issue. I have now received and reviewed those submissions.

[2] The Municipality seeks partial indemnity costs in the amount of $26,400.52, inclusive of fees, disbursements and HST.

[3] The respondents take the position, firstly, that they ought not to pay any costs. Alternatively, they submit that the partial indemnity costs awarded to the municipality ought not to exceed approximately $15,000.

[4] For the following reasons, I allow the full amount claimed by the Municipality.

ISSUES AND ANALYSIS

Should costs be payable by the respondents?

[5] The respondents submit that they should not be paying any costs to the Municipality. They submit that the proceedings were neither complex nor important to the Municipality.

[6] While I agree that the matter was not particularly complex, I disagree with the submission that it was not important to the Municipality. In her affidavit sworn October 17, 2016, Melanie Ducharme deposed on behalf of the Municipality that the respondents had refused to discontinue their use of the subject property as an automotive repair facility. I gather from that statement that the Municipality had taken steps to try to resolve the situation short of bringing the application.

[7] Even if that conclusion is wrong, the situation was obviously important enough to the Municipality to cause it to commence and proceed with the application. If the application was the first step taken by the Municipality to enforce the bylaw, it was open to the respondents to avoid or reduce the costs to which they might be exposed by discontinuing the use to which they were putting the subject property.

What costs should be payable by the respondents?

[8] Alternatively, the respondents submit that the partial indemnity costs payable to the Municipality ought not to exceed the sum of approximately $15,000. They object to the following aspects of the partial indemnity costs sought by the applicants.

Excessive Hours

[9] The respondents admit that Mr. Miller is an experienced municipal law lawyer. They argue, however, that he ought to have spent less time than that for which his clients seek costs because he is so experienced. I disagree. As the Municipality has pointed out in its reply submissions, the time spent by Mr. Miller was increased as a result of the fact that the respondents served an affidavit after cross-examinations were completed. This required Mr. Miller to travel to and attend at a further cross-examination. The rest of the time spent by Mr. Miller appears to me to be reasonable.

[10] The respondents have failed to provide a copy of their own bill of costs. Although they are not obliged to do so, where they do not, they provide no information concerning the reasonable expectations of the losing party: Smith Estate v. Rotstein, 2011 ONCA 491, at para. 50.

Computer Research Fees

[11] The respondents submit that the costs of computer research ought not to be allowed. They submit that such costs should form part of office overhead. They rely on two decisions of this court: Southworks Outlet Mall Inc. v. Bradley (2009), 97 O.R. (3d) 796 and Goodman v. Rumm. However, in Moon v. Scher (2004) 192 O.A.C. 222, the Ontario Court of Appeal held, at para. 39, that costs of computerized legal research should be recoverable as a disbursement provided that it is not excessive and has been charged to the client. I am bound by the decision in Moon. At $298.13, I do not find the amount charged for computer research to be excessive. Further, counsel for the Municipality advises in his reply submissions that this sum represents the costs of obtaining the cases that were submitted to the court.

[12] Therefore, I would allow this item in full.

Photocopy Charges

[13] The Municipality seeks $355.06 for photocopy costs. The actual cost of photocopies is shown on the bill of costs as $546.25. However, as it has done with a number of other disbursements, the Municipality seeks only 65% of the amount of this disbursement. I confess that this is the first time I have ever seen disbursements reduced in the same way that fees are for the purpose of partial indemnity costs.

[14] I agree with the respondents’ objection that the Municipality failed to provide sufficient information to allow this disbursement in its initial submissions. However, in reply, the Municipality advises that the sum of $546.25 represents the costs of photocopies at .25ȼ a page. This amounts to 2,185 photocopies. The thickness of the court file is consistent with this number.

[15] I would allow this disbursement in full.

Long Distance Calls

[16] The Municipality seeks $9.01 for long distance calls. Like the photocopy disbursement, the original disbursement for long distance calls in the amount of $13.86 has been reduced by 35%.

[17] The respondents submit that the Municipality has not demonstrated that these calls were either necessary or reasonable. It is hard to imagine that the long distance charges for telephone conversations between counsel or between counsel and witnesses would not cost at least this much over the course of an application such as this. I would have allowed this disbursement without requiring any further information. However, the Municipality has provided more information in its reply submissions. Those submissions confirm that the calls were between counsel and between counsel for the Municipality and his client.

[18] I would allow this disbursement in full.

Courier Costs

[19] The Municipality seeks courier costs in the amount of $134.41. Like the disbursements referred to immediately above, this disbursement has also been reduced by 35% from $206.79.

[20] The respondents submit that the Municipality has not shown these costs to be necessary. Again, I agree that this was true as far as the Municipality’s initial submissions go. In its reply submissions, however, the Municipality has explained that these costs were incurred to deliver the reply application record, factum, exhibit book, book of authorities and supplementary exhibit book and transcripts. I agree with the Municipality’s submission that sending these documents by courier saved the expense of hiring an agent to serve and file them.

[21] I would allow the full amount of the courier costs sought by the Municipality.

Mileage

[22] The Municipality seeks the sum of $840 for mileage.

[23] Once again, I agree with the respondents that the Municipality failed to provide an adequate explanation for this disbursement in its initial submissions. However, in its reply submissions, the Municipality explains that counsel travelled to North Bay on four occasions, charging mileage at the rate of .50ȼ per kilometre for 420 kilometres for each attendance.

[24] The respondents also object to the mileage disbursement on the basis that, while it was appropriate to use counsel from outside of the Municipality, the Municipality should have to demonstrate that there was no competent counsel within the judicial district.

[25] The respondents rely upon the decision in Latendresse v. The Co-Operator’s Insurance Co. and Katic. In Latendresse, the court reduced the amount claimed for travel disbursements on the basis that the losing party ought not to be required to fully indemnify the successful party for choosing counsel from outside the local bar (: para. 4). In MacRae v. Santa, 2002 CarswellOnt 3030, [2002] O.J. No. 3539 (Ont. S.C.), 116 A.C.W.S. (3d) 627, the court disallowed the winning party’s lawyer’s travel expenses altogether. Pierce J. held, at paras. 20 and 21:

20 The reasoning of Richard J in Dennis v. Northwest Territories (Commissioner) (1990), 39 C.P.C. (2d) 41 (N.W.T. S.C.) commends itself to me. In deciding whether to allow travel costs for non-resident counsel travelling from Vancouver to Yellowknife to argue interlocutory motions, Richard J. stated at page 43:

In considering this matter, I am mindful of a practice which existed for many years in this jurisdiction (if my memory serves me correctly, as I can find no written record of the practice) of the disallowance by the taxing officer of travel disbursements incurred by a litigant in retaining non-resident counsel, unless special circumstances existed to show that it was not reasonable to retain resident counsel. Given the increased size of the resident bar today, I am of the view that this is a practice or guideline which should continue, unless “special circumstances” are shown. Litigants are free, of course, to choose to retain non-resident members of the bar, but it may not be just or fair to “pass on” the cost of that choice to the other party to the litigation, as of course.

21 In the case at bar, there are no special circumstances such that local counsel are unavailable or inexperienced. The defendants are at liberty to choose their counsel, but not to impose the cost of that choice on the opposing party in the course of litigation, absent special circumstances. The claim for counsel’s travel and lodging is disallowed.

[26] The opposite result was reached in the case of Sherway Contracting (Windsor) Ltd. v. Kingsville (Town), 2003 CarswellOnt 354, [2003] O.J. No. 327, 120 A.C.W.S. (3d) 18 (Ont. S.C.), in which Ducharme J. held that “[t]he defendants were entitled to retain any lawyer licensed to practice in Ontario” (: para. 5).

[27] These conflicting decisions raise interesting questions. Should there be a rule that deprives the successful party of the costs associated with retaining out-of-town counsel in certain circumstances? Such a rule might work to promote expertise within the local bar. However, it might also impair the right to counsel of choice. If there should be such a rule, should it matter whether counsel won the war, or just a small skirmish in the battle? Upon whom should the onus fall? Should the winning party really have to be put in the unenviable position of attacking the competence of members of the local bar, or boasting about the competence of the lawyer they chose? And how should the onus be satisfied? Can the court take judicial notice of the competence or calibre of counsel in a geographic area?

[28] Fortunately, I do not have to answer any of these questions, except perhaps the last.

[29] If “special circumstances” must be shown before the successful party can recover the travel costs of out-of-town counsel, then I would hold that they have been shown here. It is impossible to ignore my own long experience as a member of the local bar and as a judge in this locale. There are no local lawyers or law firms who enjoy a reputation such as that of Mr. Miller’s firm in the area of municipal law. His law firm routinely acts for municipalities located in this judicial district. Indeed, I cannot think of any other counsel who has appeared against me or before me more often than Mr. Miller has in municipal law matters.

[30] I would allow the claims for travel expenses in full.

Law Clerk Fees

[31] The respondents submit that the law clerk fees sought by the Municipality should also form part of office overhead: Keller v. Keller, 2013 ONSC 294, at para. 7; Beerthuizen et al v. West Arthur Place, at para. 16. The decisions relied upon by the respondents appear to be contrary to the weight of authority when it comes to the time spent by law clerks: see Mark M. Orkin, The Law of Costs, loose-leaf (2016 - Rel. 65), 2nd ed. (Toronto: Thomson Reuters Canada Limited, 2016), at para. 219.7.1. The fees of law clerks are routinely allowed as partial indemnity costs.

[32] I would allow the full amount sought for law clerk’s fees in this matter.

CONCLUSION

[33] For the foregoing reasons, I would allow the full amount of the partial indemnity costs sought by the Municipality in this matter in the amount of $26,400.52 and I so order.

Ellies J. Released: July 12, 2017