Court File and Parties
Court File No. CV-14-6029
Reynolds v. Harwood Plumbing, 2017 ONSC 6845
Ontario Superior Court of Justice
Endorsement
PLAINTIFF: TIMOTHY REYNOLDS Counsel: Ian McLean for the Plaintiff
DEFENDANT: HARWOOD PLUMBING AND HEATING LTD. Counsel: Dawood Ahmad for the Defendant
ADDENDUM ON COSTS
[1] Pursuant to my Endorsement released on August 30, 2017, the Defendant seeks "its costs, at a minimum, on a partial indemnity scale" totalling $8,816.31. The Plaintiff provided instructions to his Counsel that "His position as conveyed to me is that there should be no costs awarded as he was not out of time pursuant to the Limitations Act." The Plaintiff also further provided his own submission which essentially indicated that "since the Defendant's Lawyer's false statement denied Justice Nadeau evidence to make a fully informed decision it is requested that the Defendant's claim for costs be denied".
[2] This Court must apply all of the factors in Rule 57, as well as the principles enunciated by the Ontario Court of Appeal in several cases including Boucher v. Public Accountants Council (Ontario) 2004 14579 (ON CA), [2004] O.J. No. 2634. The suggested approach was that:
"...it is also necessary to step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable. This approach was sanctioned by this court in Zesta Engineering Ltd. v. Cloutier (2002), 2002 25577 (ON CA), 21 C.C.E.L. (3d) 161 (Ont. C.A.) at para. 4 where it said:
In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant."
[3] From Boucher, Armstrong J.A. stated:
"Subrule (1) lists a broad range of factors that the court may consider in exercising its discretion to award costs under s .131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The express language of rule 57.01(3) makes it clear that the fixing of costs is not simply a mechanical exercise. In particular, the rule makes clear that the fixing of costs does not begin and end with a calculation of hours times rates...Overall, as this court has said, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant."
[4] In that decision, the Ontario Court of Appeal added:
"In deciding what is fair and reasonable, as suggested above, the expectation of the parties concerning the quantum of a costs award is a relevant factor. See City of Toronto v. First Ontario Realty Corporation (2002), 2002 49482 (ON SC), 59 O.R. (3d) 568 at 574 (S.C.J). I refrain from attempting to articulate a more detailed or formulaic approach. The notions of fairness and reasonableness are embedded in the common law. Judges have been applying these notions for centuries to the factual matrix of particular cases."
[5] 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 that must be considered when awarding costs:
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, Moon v. Sher (2004), 2004 39005 (ON CA), 246 D.L.R. (4th) 440 (Ont. C.A.), and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 2005 1042 (ON CA), 75 O.R. (3d) 638 (C.A.).
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.
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).
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.
The court should seek to balance the indemnity principle with the fundamental objective of access to justice: Boucher.
[6] As outlined, the overriding principle is whether the costs award is fair and reasonable: Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.), at para. 52.
[7] In essence, there are limits at each step in the litigation based on the principles of predictability or the reasonable "expectations of the parties". I make no specific finding with respect to the amount of time spent or the rates charged by Counsel for the Defendants. As directed by the appellate Court, my costs award is what this Court views as a "fair and reasonable" amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigants.
[8] I have also considered the Costs Outline dated September 13, 2017, and the correspondence between Counsel dated March 1, 2016. I note that the Notice of Action was issued November 18, 2014 and the Statement of Claim was filed on December 10, 2014 seeking damages of $100,000.00. However, since the Costs Outline does not identify specific dates for services rendered nor the totals of hours or the applicable rate claimed, I cannot ascertain what actual costs were incurred after March 14, 2016.
[9] In exercising my discretion from the Courts of Justice Act I have taken into account the factors enumerated under Rule 57, including the time spent, the experience of Counsel and the rates, the result achieved, the complexity of this matter and the conduct of the proceeding, as well as the principle of proportionality. Considering all of these factors and principles, I have determined the fair and reasonable amount.
[10] My Order is that the Defendant is entitled to costs for this motion payable forthwith by the Plaintiff, and fixed in the amount of $7,500.00 all inclusive of fees, disbursements and HST.
Released: November 22, 2017
The Honourable Mr. Justice David J. Nadeau