Court File and Parties
COURT FILE NO.: 20018/16 DATE: 2017-11-21 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
JAMES WALLBRIDGE, ALMEDA WALLBRIDGE and WALLBRIDGE, WALLBRIDGE Plaintiffs – and – FAY BRUNNING and WILLIAMS-LITIGATION LAWYERS Defendants
COUNSEL: G. Adair, Q.C./G. McGuire, Counsel for the Plaintiffs S. Secord, Counsel for the Brunning, Fay Brunning
HEARD: written submissions
Before: Rasaiah J.
REASONS ON COSTS
OVERVIEW
1I rendered a decision regarding the defendant Brunning’s motion to inspect documents and for particulars on October 20, 2017. The issue of costs was not resolved and I received submissions on the issue.
2The plaintiffs are seeking costs on a substantial indemnity basis in the amount of $11,449.64 – fees of $8,808.00 plus H.S.T of $1,145.04 and disbursements (document duplication $190.45, courier $43.77, process server fees $220, and flight $870.21) of $1,324.43 plus H.S.T. of $172.17. The plaintiffs submit that partial indemnity costs would be $8,344.64 inclusive of fees, disbursements and H.S.T.
3The defendant Brunning is asking that costs be reserved to the trial judge or ordered in the cause, or in the alternative, that there should be no costs ordered.
ANALYSIS
4The fixing of costs is a discretionary decision under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. These include the result of the proceeding; any written offer to settle; indemnity for the successful party; counsel experience; counsel rates; hours spent by counsel on the matter; amount the unsuccessfully party could reasonably be expected to pay; the amount at issue; apportionment of liability; the complexity; the importance of the issues; conduct of the party that shortened or lengthened unnecessarily the proceeding; whether the step was improper, vexatious, unnecessary, taken through negligence, mistake or excessive caution; refusals to deny or admit anything that should have been admitted; and any other matter relevant to the question of costs.
5Unless the court is satisfied that a different order would be more just, on the hearing of a contested motion, the court shall fix the costs and order them to be paid within 30 days: Rule 57.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
6No written offers to settle were made by either party.
7Based on the calls to the bar of the plaintiffs’ counsel (Adair, Q.C.: 1969/ substantial indemnity rate $420hr and partial indemnity rate and McGuire: 2010/s.i.r. $290hr and p.i.r. $200) the hourly rates are not unreasonable. The defendant Brunning did not make a submission otherwise.
8The particulars of the time spent on the file were outlined in the bill of costs filed. The time spent by Mr. Adair on the file is fair and related the step in the proceeding. I find the same with respect to the time spent by Mr. McGuire having regard for the materials filed and the argument of the motion.
9I find the plaintiffs achieved substantial success in defending this motion on the remaining requests that were being sought. I dismissed all remaining requests pertaining to the request to admit and granted only a small number of the remaining requests related to the demand for particulars.
10As indicated in my reasons, in advance of this motion being argued, I was of the view that the defendant Brunning had the majority of what she was seeking/needed. However, I have considered that she did not have everything, as my decision determines. Demands were being made for her to file her statement of defence or otherwise she would be noted in default.
11I have also considered that the defendant Brunning on the motion did not seek a number of the items as set out in the request to admit and demand for particulars, after and because the copies of the seven letters and Facebook postings were received, and after and because the plaintiffs’ position was clarified on some of the items. Some of these productions and clarifications occurred either shortly before or on the very day of the hearing of the motion. By the time the motion was actually argued, the list of requests had been reduced and these requests may not have been included in the motion to begin with had they been received when requested. My decision outlines the foregoing mentioned clarifications/resolved requests and I am not going to repeat them here.
12I further note in this analysis that while the plaintiffs made the seven letters; Facebook postings and other information available eventually (which put to rest some of the requests), the road to that production was not without difficulty, and initial plaintiffs’ counsel’s reactions were in fact outright refusals to provide any of what was being requested – evidenced by the letters exchanged between counsel prior to the motion being brought.
13In terms of conduct, my sense and view are that both parties have from time to time “dug in their heels” on the issues that eventually came before me.
14The response to my order for particulars is six pages in length.
15This foregoing being said about actions and conduct, at the end of the day, on the date of the hearing, the defendant Brunning chose to proceed to argue for an order for all of the remaining, unanswered requests and demands and I am of the view that some costs should be ordered based on my decision regarding them, and I will exercise my discretion to order costs.
16Balancing and considering all of the above, I hereby find costs in the amount of $6,197.40 inclusive of fees, disbursements and H.S.T. to be fair and reasonable in all of the foregoing mentioned circumstances.
17On the issue of the date by which the costs should be paid, I find no circumstances to justify taking payment outside of the provisions of the rule.
ORDER
- The defendant Faye Brunning shall pay costs to the plaintiffs in the amount of $6,197.40 inclusive of fees, disbursements and H.S.T., payable within 30 days of today’s date.
Rasaiah J.
Released: November 21, 2017