Superior Court of Justice - Ontario

CITATION: Monteith Mineralized Solutions v. Nu-Gro Ltd. et al, 2017 ONSC 4737

COURT FILE NO.: 11-0245

DATE: 20170804

RE: Monteith Mineralized Solutions Inc., Plaintiff

AND:

Nu-Gro Ltd., Agrium Advanced Technologies Inc. and Agrium Inc., Defendants

BEFORE: Justice J. R. McCarthy

COUNSEL: James R. Milne, Counsel, for the Plaintiff

Peter H. Griffin and Brendan F. Morrison, Counsel, for the Defendants

HEARD: In writing

ENDORSEMENT

[1] On March 10, 2017, I granted leave to the Defendants/Moving Party to appeal to the Divisional Court from the order of DiTomaso J dated April 29, 2016. I then invited written submissions on costs from the parties on the leave application in the event that they were unable to resolve that issue between themselves. Given that the moving party Defendants were successful on the leave application, I invited submissions on quantum only.

[2] The Defendants seek costs in the amount of $5,712.83 for fees and HST, plus $2,708.26 for disbursements and HST for a total of $8,421.09.

[3] The Plaintiff considers those costs to be excessive. The Plaintiff takes exception with the billable hourly rate of $930.60 for lawyer Peter Griffin; with the time allegedly spent on the motion; with the amounts claimed for copying/printing and binding the materials; and with the process server’s fees for service and filing.

[4] This was not a complex leave application. Having said that, the materials on both sides were fulsome, well prepared and of great assistance to the court. The quality of written advocacy was high.

[5] The issue was important: as stated in my reasons for granting leave, the issue of whether a stay of proceedings in an action is appropriate when one of the litigants is restrained from settling the action for an indeterminate period is of great importance.

[6] While the Plaintiff is critical of the hourly rate of Mr Griffin, it is apparent that junior lawyer Morrison did the lion’s share of the work. I find nothing unreasonable at all about his hourly rate or the amount of time spent on preparing the materials. Careful preparation of written materials is of the utmost importance given that counsel will not be appearing in open court to expand upon or explain what is set out in the materials. The fees portion of the costs claimed are reasonable and proportional to the matter before me.

[7] The disbursements may not be excessive but they are undocumented. In the absence of invoices from third parties or some kind of explanation for the quantum of those charges, they should not be entirely foisted upon the unsuccessful party. I am only prepared to allow $1,000.00 in total for those two categories of disbursements. This leaves the disbursements allowable (with HST) at $1,718.65.

[8] I would therefore order the Plaintiffs to pay to the Defendants/Moving Party their costs of the leave application comprised of $5,712.83 in fees, inclusive of HST and $1,718.65 for disbursements for a total of $7,431.70. That amount is fixed and payable forthwith.

J. R. McCarthy J.

Date: August 4, 2017