CITATION: Tondat v. Hudson’s Bay Company, 2017 ONSC 4595
COURT FILE NO.: CV-1736/13
DATE: 2017 07 28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SANDRA TONDAT – and – HUDSON’S BAY COMPANY, QUINTERRA PROPERTY MANAGEMENT INC. and CINTAS CANADA LIMITED
BEFORE: André J.
COUNSEL: Matt Lalande, for the Plaintiff
Kieran Dickson, for the Defendants
HEARD: In Writing
COSTS ENDORSEMENT
[1] Following a two day trial in which the litigants agreed that the quantum of damages was $100,000, the plaintiff now claims costs of $159,947.37.
BACKGROUND FACTS
[2] Ms. Sandra Tondat slipped and fell in a store owned by the Hudson’s Bay Company on December 2, 2012. Prior to the trial on April 24 and 25, 2017, the parties agreed that the appropriate quantum of damages, in the event that either or both of the defendants were found liable, was $100,000. The evidence at the trial revealed that Ms. Tondat slipped and fell in the entrance of the store after it had rained heavily earlier that day.
[3] The defendants relied on expert evidence to the effect that, given the matte finish of the floor tiles where Ms. Tondat fell, they had no legal obligation to take steps to ensure that the tiles were cleaned regularly. I rejected this defence and found that the failure of Quinterra Property Management Inc. to establish a system for dealing with water hazards in the store’s vestibule made it liable for the injuries sustained by Ms. Tondat.
ANALYSIS
[4] In determining the quantum of costs that can be considered fair and reasonable, I rely on the factors enumerated in Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and other relevant factors.
[5] First, it is well established that as the successful party in the litigation, Ms. Tondat is entitled to her costs. This factor, however, does not entitle a successful litigant to whatever cost claims that he or she advances; the court has the discretion to determine a quantum of costs that can be considered fair and reasonable.
[6] Second, this matter was a relatively uncomplicated matter. The parties agreed, before the trial, that the quantum of damages if the defendants were found liable would be $100,000. The trial did not even require a full two days. Only four witnesses were called, including an expert witness called by the defendants. Furthermore, the sole issue in this trial was uncomplicated and straightforward. It dealt with whether either defendant was liable for Ms. Tondat’s injuries.
FEES FOR PERIOD FROM DECEMBER 21, 2012 TO SEPTEMBER 21, 2015
[7] The plaintiff’s counsel claims fees of $31,685.20 for 95.7 hours of work done between December 21, 2012 and September 21, 2015. This includes 83.2 hours for the plaintiff’s counsel, at an hourly rate of $325 (his year of call is 2003, and hourly rate is $400-$500 per hour), and 12.5 hours for his law clerk, at an hourly rate of $180. There are no docketed time entries provided for the work performed during this period. Given the paucity of evidence concerning the actual work done or the docketed time spent on this work, I am unable to conclude that this amount is fair or reasonable.
TRIAL PREPARATION
[8] Mr. Lalande claims 69 hours at an hourly rate of $400, as trial preparation. He provided a breakdown of the work done to prepare for the trial but provided no details regarding the time spent on each of these tasks. However, this was an uncomplicated trial which, in my view, did not warrant the amount of time claimed as constituting “trial preparation”.
[9] Furthermore, there does not appear to be any justification for counsel to claim costs for trial preparation on a substantial indemnity basis. The issues for the trial were narrowed to a single one. The defendants were entitled to have the matter litigated. This decision was not unreasonable given that they relied on an appellate decision which they reasonably believed was applicable to this case. To that extent, the defendants should not be penalized by an award of costs on a “substantial indemnity” basis.
[10] There is no evidence that Ms. Tondat, through her counsel, made a formal offer to settle or exceeded a formal offer made by the defendants, pursuant to Rule 49.10, as would justify costs awarded on a substantial indemnity basis.
OHIP SUBROGATED INTEREST CLAIM
[11] Mr. Lalande also claims $11,320 under a caption “OHIP Subrogated Interest”. He claims in his written costs submissions that the parties had “agreed on a quantum of damages which totaled $100,000, plus interest, costs, disbursements and repayment to OHIP”. I agree with counsel for the defendants that the OHIP subrogated claim “cannot be characterized as costs or disbursements”. Second, the confirmatory letter dated September 22, 2015 sent by the defendants’ counsel to Mr. Lalande indicates that:
We have agreed upon a damages quantum in the amount of $100,000, with this to be augmented by interests and costs in the event that Ms. Tondat prevails at trial on liability issues.
[12] While it can be assumed that a costs claim includes disbursements, it cannot be assumed that it also includes an OHIP subrogated interest claim. In my view, this amount forms part of the $100,000 which the parties agreed to as the quantum of damages payable to Ms. Tondat.
PREJUDGMENT INTEREST
[13] Mr. Lalande claims prejudgment interest (PJI) from August 1, 2013 to the judgment date at a rate of interest of 5% annually, for a total amount of $20,706.60. Such interest, however, will be calculated from the date of the accident to the date of my decision, or 4.5 years. To that extent the PJI will be fixed at $19,953 (i.e. 5% x 4.5 years x $88,680), while interest on the OHIP claim is $622 (i.e. 1.3% x 4.5 years x $11,320). Therefore, the total amount of PJI owing is $20,575.
DISBURSEMENTS
[14] The Plaintiff claims disbursements in the amount of $31,254.27. This includes an amount of $6,619.05 paid to an engineering firm and $2,698.91 for “photocopies, digital scans, long distance faxes, etc.”
[15] The defendants submit that the plaintiff should not be reimbursed for the amount paid to the engineering firm given that the report of the plaintiff’s engineers was not presented during the trial. However, counsel for the plaintiff had every right to seek an opinion regarding the vestibule’s flooring where the accident occurred.
[16] In my view, costs which are fair and reasonable in this case are the aggregate of the following:
Fees $30,000
HST 6,900
Disbursements 25,000
PJI 20,575
TOTAL $82,475
COSTS
[17] The defendants will pay costs fixed in the amount of $82,475 to the plaintiff within sixty (60) days of today’s date.
André J.
DATE: July 28, 2017
CITATION: Tondat v. Hudson’s Bay Company, 2017 ONSC 4595
COURT FILE NO.: CV-1736/13
DATE: 2017 07 28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SANDRA TONDAT – and – HUDSON’S BAY COMPANY, QUINTERRA PROPERTY MANAGEMENT INC. and CINTAS CANADA LIMITED
BEFORE: André J.
COUNSEL: Matt Lalande, for the Plaintiff
Kieran Dickson, for the Defendants
COSTS ENDORSEMENT
André J.
DATE: July 28, 2017