CITATION: C.M. Callow Inc. v. Tammy Zollinger et al., 2017 ONSC 7091
COURT FILE NO.: 13-58903
DATE: 2017/11/27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
C.M. Callow Inc.
Plaintiff
– and –
Tammy Zollinger et al.
Defendants
Miriam Vale Peters for the Plaintiff
Jocelyn Duquette for the Defendants
HEARD: September 29, 2017
ENDORSEMENT
AS TO costs
o’bonsawin J.
[1] On September 29, 2017, Mr. Callow brought before me a motion to amend his Statement of Claim to correct the name of the Plaintiff named as Christopher Callow and correctly replace it with C.M. Callow Inc. I decided in Mr. Callow’s favor since it was a situation of misnomer where there was an error in properly naming the Plaintiff. Consequently, I granted the Orders requested by Mr. Callow.
[2] I released my Reasons for Decision on October 6, 2017 in which I invited the parties to make written costs submissions if they could not come to an agreement on the issue of costs. The parties did not come to an agreement and provided me with their submissions on costs, Costs Outlines, and case law. This is my decision on the issue of costs.
[3] C.M. Callow argues that I should order Zollinger et al. to pay costs of the Motion in an amount equal to 75% of the partial indemnity rate as set out in its Bill of Costs since it was entirely successful on the Motion. C.M. Callow further submits that the Motion was necessary in order to correct an error made at the time that the action was commenced.
[4] C.M. Callow further submits Zollinger et al. opposed its Motion and brought a Cross-Motion for Summary Judgment. When presented with C.M. Callow’s motion, Zollinger et al. should have either consented or at least taken no position. Had they done so, it is unlikely that C.M. Callow would have received its costs let alone made a request for them in the first place. Therefore, in light of Zollinger et al.’s aggressive stance, C.M. Callow argues that since it was entirely successful, some measure of costs should be awarded in its favor.
[5] C.M. Callow provided me with a Bill of Costs for the Motion. Its counsel, Ms. Vale Peters, has 13 years of experience. Her hourly rate is $300 and 20.3 hours were spent for this Motion. Costs are listed for full indemnity costs at a total amount of $4,074.55 and at a partial indemnity costs at a total amount of $2,551.31 (60%). Counsel was assisted by a student-at-law and a law clerk.
[6] Zollinger et al. are seeking their costs in the amount of $5,706.00 since this was a last-minute Motion to amend the pleadings that were entirely due to C.M. Callow’s failure to identify the proper Plaintiff and to bring the Motion in a timely manner. Alternatively, in light of the fact that the trial in this matter has already taken place, Zollinger et al. submits that the costs of the Motion should be made payable in the cause.
[7] Zollinger et al. had two counsel assigned to this file. Mr. Escayola was called to the bar in 2013 at an hourly rate of $390 and Mr. Duquette was called to the bar in 2013 at an hourly of $230. They, along with an articling student, spent 35 hours on this matter, incurring partial costs of $5,706.31 (60%), substantial indemnity costs of $8,347.12 (90%), and full indemnity costs of $9,227.39.
[8] A successful party is presumptively entitled to costs in a reasonable amount (Boucher v. Public Accountants Council for the Province of Ontario, 71 O.R. (3d) 291, 2004 CanLII 14579 (C.A.) [Boucher]). The amount awarded is intended to be fair and reasonable for the unsuccessful party, but not fixed by the actual costs incurred by the successful party (Boucher, at paras. 24, 26).
[9] The court has discretion to award costs pursuant to s. 131 of the Courts of Justice Act, and rule 57.01 of the Rules (Goldman v. Weinberg, 2017 ONSC 4743, at para. 4 (citing Chandra v. CBC, 2015 ONSC 6519)). Rule 57.01(1) sets out a number of factors to be considered in determining costs.
[10] Parties often argue that costs should follow the event. This was confirmed in Schreiber v. Mulroney, 160 A.C.W.S. (3d) 53, 2007 CanLII 31754 (Ont. S.C.), at para. 2. Substantial indemnity costs are the exception to the rule.
[11] C.M. Callow refers me to Moore v. Getahun, 2014 ONSC 3931. This is a medical malpractice action. In Moore, Wilson J. awarded a partial indemnity award of approximately 60% of the Plaintiff’s full indemnity costs. This was determined to be reasonable in that case and in line with the case law.
[12] Zollinger et al. refers me to Yeoman et al. v. Meyer et al., 2015 ONSC 716, Kings Gate Developments Inc. v. Colangelo, 17 O.R. (3d) 841, 1994 CanLII 416 (ON CA), Evans v. Revenu Properties, 2011 ONSC 2132 and Williams v. Whitefish First Nations, 2014 ONSC 1817. In Yeoman, Broad J. states: “Notwithstanding the general rule that costs follow the event, it has been held that the wording of rule 26.01 is such that on a motion to amend a pleading, compensatory award of costs to the responding party will frequently be appropriate, even if the responding party was not successful in opposing the motion to amend” (para 13). It must be noted however, that this a fact driven approach.
[13] Kings Gate, is a matter regarding the sale of condominium units. On the eve of the trial, the Defendants sought an Order permitting them to make extensive amendments to their Statement of Defence. The Court of Appeal for Ontario put emphasis on the words of Rule 26.01 “on such terms as are just”. The Court concluded that just terms required that the Defendants pay solicitor-and-client costs to the Plaintiff in relation to the Motion. Although the Motion in C.M. Callow’s case was on the eve of trial as in the matter of Kings Gate, this was not a case of extensive amendments and can therefore be distinguished.
[14] Evans is a case where there was a Motion to set aside an Order of the registrar dismissing the action for delay. Master Dash found that the court granted the Plaintiff a substantial indulgence given the delays and the lack of explanation as to the inadvertence and failure to bring the Motion promptly (para. 31). Master Dash also found that it was reasonable of the Defendant to oppose the Motion and ordered the Plaintiff to pay the Defendant’s costs.
[15] Williams is also a case where there was a Motion to set aside an Order of the registrar dismissing the action for delay. As in Evans, Master Muir also found that it reasonable for the Defendant to have opposed the Motion. Master Muir ordered the Plaintiff to pay the Defendant’s costs of the Motion since the Plaintiff and his lawyer failed to satisfactorily explain long period of delay (para. 34).
[16] It must be noted that the explanation of the delay and the issue of delay are factors to be considered in setting aside a default judgment. C.M. Callow is not a matter of default judgment. This was a situation of misnomer where there was an error in properly naming the Plaintiff. Zollinger et al. should have consented to the change.
[17] I have taken into consideration the factors in rule 57.01(1), for example, the matter was not complex and the issue was important to C.M. Callow. I have also considered the case law provided to me by the parties. I conclude that the costs sought by C.M. Callow are reasonable. Consequently, I exercise my discretion and order that Zollinger et al. pay C.M. Callow the fair and reasonable amount of $2,551.31 as a partial indemnity inclusive of disbursements and HST. This amount is to be paid within 30 days of this Endorsement.
Justice M. O’Bonsawin
Released: November 27, 2017
CITATION: C.M. Callow Inc. v. Tammy Zollinger et al., 2017 ONSC 7091
COURT FILE NO.: 13-58903
DATE: 2017/11/27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
C.M. Callow Inc.
Plaintiff
– and –
Tammy Zollinger et al.
Defendants
ENDORSEMENT AS TO COSTS
O’Bonsawin J.
Released: November 27, 2017