CITATION: Drash v. Canadian Medic Alert Foundation, 2017 ONSC 4935

COURT FILE NO.: CV-16-555070

DATE: 20170818

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Philip Drash, Plaintiff

AND:

Canadian Medic Alert Foundation and Talia Heinz-Thurston, Defendants

BEFORE: J. Ferguson, J.

COUNSEL: Lorne Honickman, for the Plaintiff

Jeffrey Goodman, for the Defendant Medic Alert

Natalie M. Leon, for the Defendant Talia Heinz-Thurston

HEARD: In-writing

ENDORSEMENT ON COSTS

Overview

1I have received the written submissions regarding costs of the motion.

2This is an appropriate case for the plaintiff to be awarded costs on a partial indemnity basis, fixed and payable forthwith.

3I do not accept the defendant`s submission that costs of the motion should be payable in the cause of the summary judgment motion or that the parties should bear their own costs. I do accept that the plaintiff should receive a reduced portion of the partial indemnity costs for reasons that follow.

4Success was not divided with respect to this motion. The plaintiff was the “winner”.

5The partial indemnity costs being sought by the plaintiff are $14,338.80 inclusive of fees, disbursements and HST. This includes disbursements of $5,655.68 ($2,194.45 for transcripts and $2,503.93 for photocopying).

Law of Costs

5In Chandra v. CBC, 2015 ONSC 6519 (“Chandra”), the court set out the following applicable principles for dealing with costs at paras. 15-17:

15. The general principles to be applied in fixing costs are conveniently articulated in Agius v. Home Depot Holdings Inc., 2011 ONSC 5272, at paras. 10-12, as follows:

Cumming J. in DUCA Financial Services Credit Union Ltd. v. Bozzo, 2010 ONSC 4601 at para. 5, described the “normative approach” to an application for costs:

Costs are in the discretion of the Court: s. 131, Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 57.01 of the Rules of Civil Procedure. In Ontario, the normative approach is first, that costs follow the event, premised upon a two-way, or loser pay, costs approach; second, that costs are awarded on a partial indemnity basis; and third, that costs are payable forthwith, i.e. within 30 days. Discretion can, of course, be exercised in exceptional circumstances to depart from any one or more of these norms.

Fixing of costs is not merely a mechanical exercise in reviewing the receiving party’s Cost Outline. In Andersen v. St. Jude Medical Inc. (2006), 2006 85158 (ON SCDC), 264 D.L.R. (4th) 557, the Divisional Court set out several principles to be considered in making an award of costs:

1. The discretion of the court must be exercised in light of the specific facts and circumstances of the case in relation to the factors set out in rule 57.01(1): Boucher [Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291], Moon [Moon v. Sher (2004), 2004 39005 (ON CA), 246 D.L.R. (4th) 440], and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 2005 1042 (ON CA), 75 O.R. (3d) 638 (C.A.).

2. A consideration of experience, rates charged and hours spent is appropriate, but is subject to the overriding principle of reasonableness as applied to the factual matrix of the particular case: Boucher. The quantum should reflect an amount the court considers to be fair and reasonable rather than any exact measure of the actual costs to the successful litigant: Zesta Engineering Ltd. v. Cloutier (2002), 119 A.C.W.S. (3d) 341 (Ont. C.A.), at para. 4.

3. The reasonable expectation of the unsuccessful party is one of the factors to be considered in determining an amount that is fair and reasonable: rule 57.01(1)(0.b).

4. The court should seek to avoid inconsistency with comparable awards in other cases. “Like cases, [if they can be found], should conclude with like substantive results”: Murano v. Bank of Montreal (1998), 1998 5633 (ON CA), 41 O.R. (3d) 222 (C.A.), at p. 249.

5. The court should seek to balance the indemnity principle with the fundamental objective of access to justice: Boucher.

The Court of Appeal has identified the overriding principle to be that the amount of costs awarded be reasonable in the circumstances. In Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 Epstein J.A. stated at paras. 51-52:

As can be seen, the overriding principle is reasonableness. If the judge fails to consider the reasonableness of the costs award, then the result can be contrary to the fundamental objective of access to justice. Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant. In Boucher, this court emphasized the importance of fixing costs in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding at para. 37, where Armstrong J.A. said “[t]he failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice.”

16. As Mark Orkin in The Law of Costs, 2^nd ed., loose-leaf (Aurora, Ont.: Canada Law Book, 2010) reminds us (at para. 201) awarding costs is an exercise in balancing two principles:

…One, that a successful party to litigation who is free of blame should not be required to bear the costs of either prosecuting or defending the action, and two, that citizens will be unduly hesitant to assert or defend their rights in court if an unsuccessful party is required to bear all of the costs of a successful one.

17. The principle of indemnification is no longer the only purpose of costs awards. There is recognition that modern costs awards may encourage settlement, prevent (or at least discourage) frivolous or vexatious litigation, or sanction behaviour that increases the expense of litigation.

6In fixing costs, the trial judge is not engaged in simply a mechanical exercise. She is not conducting an assessment and applying a tariff, but rather making a judicial determination using her best judgment, with some regard paid to what might occur on an assessment. She is not to scrutinize docket entries, but to consider the nature and factual and legal complexity of the case and the preparation for efficient use of court time. The goal is to reach a fair and reasonable costs award.

Boucher v. Public Accountants Counsel (Ontario), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)

Analysis

7The Rule 57.01 factors applicable in this case are the principle of indemnity; the amount of costs that an unsuccessful party could reasonably expect to pay; the amount claimed; the complexity of the proceedings and the importance of the issues.

8This was not an overly complicated motion. The issues were important to the plaintiff. Costs however must be proportionate and reasonable in all of the circumstances.

Disposition

9Fees are awarded in the amount of $5,000.00 inclusive of HST. With respect to the disbursements, the plaintiff agrees that the photocopying should be reduced to $908.80 inclusive of HST. I agree that the transcripts were required for the motion (refusals). As a result, the defendant is to also pay $3,400.00 for disbursements inclusive of HST. The total to be paid by the defendant forthwith is $8,400.00 inclusive of fees, disbursements and HST.

J. Ferguson, J.