2017 ONSC 5638
COURT FILE NO.: 11230/16
DATE: 2017/09/22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Meridian Credit Union Limited
Alyssa M. Adams, for the Plaintiff
Plaintiff
- and -
2428128 Ontario Limited and Kiky Arraf Bishara aka Kiky Arraf-Bishara
Kevin J. Scullion, for the Defendants
Defendants
The Honourable Justice T. Maddalena
ENDORSEMENT ON COSTS
[1] I heard the summary judgment motion on June 23, 2017, and provided my reasons on July 27, 2017.
[2] I have now received and reviewed the written submissions of the parties.
[3] The plaintiff, who is the successful party on the motion, seeks its actual costs, fixed in the amount of $15,674.22 all inclusive.
[4] The defendant, Kiky Arraf-Bishara (Kiky) submits that costs should be fixed on a partial indemnity basis in the amount of $7,500.00 all inclusive.
Analysis
[5] The plaintiff was completely successful on the summary judgment motion and, therefore, is entitled to costs.
[6] Rule 57.01(1) of the Rules of Civil Procedure outlines the factors for the court to consider in an award of costs.
[7] In addition to those factors outlined in Rule 57.01(1), the court, in the case of Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291, stated that the fixing of costs does not begin or end with the calculation of hours times rate. The overall objective is to fix an amount that is fair and reasonable having regard to the broad range of factors in Rule 57.01(3), for the unsuccessful party to pay rather than an amount fixed by the actual costs incurred by the successful party.[^1]
[8] In this case, summary judgment was awarded to the Plaintiff in the amount of $153,241.40.
[9] The Plaintiff seeks full indemnity costs based on the contractual right to costs set out in the general security agreement entered into between the defendant, 2428128 Ontario Limited and Meridian, as well as in the guarantee and postponement of claim between Meridian and Kiky.
[10] The Defendant, Kiky, states that the contractual claim for full indemnification has no application against her as an individual defendant. Rather it applies only to 2428128 Ontario Limited.
[11] Firstly, matters before the court were not overly complex. However, this was a summary judgment motion requiring the plaintiff to put forth extensive materials in support of its position. It did so and a trial was avoided.
[12] I find the hours and rates charged by the two senior counsel as appropriate.
[13] Also, where necessary, I note that the services of a law clerk were utilized which had the effect of lowering the overall costs incurred.
[14] However, while I find the hourly rate of counsel, Ms. Adams, as appropriate, it appears from dockets that the 31.7 hours billed is slightly excessive given the complexity of the matter. Having said that, however, I do not doubt that Ms. Adams actually spent those number of hours in preparation for the case.
[15] Overall, in considering all the aforementioned and applying the principles of reasonableness as outlined in the case of Boucher, I conclude that the amount of $10,500.00 represents an amount that is fair and reasonable under the circumstances.
Order Made
[16] The defendants, Kiky Arraf Bishara also known as Kiky Arraf-Bishara and 2428128 Ontario Limited, jointly and severally, shall pay to the plaintiff costs of the motion fixed at $10,500.00 all inclusive within 30 days
Maddalena J.
Released: September 22, 2017
2017 ONSC 5638
COURT FILE NO.: 11230/16
DATE: 2017/09/22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Meridian Credit Union Limited
Plaintiff
- and –
2428128 Ontario Limited and Kiky Arraf Bishara aka Kiky Arraf-Bishara
Defendants
ENDORSEMENT ON COSTS
Maddalena J.
Released: September 22, 2017
[^1]: Boucher v. Public Accountants Council for the Province of Ontario Rules of Civil Procedure 2017-2018 page 1426.