ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Gordon Gravelle o/a Rapidkey Industries
Self-Represented
Plaintiff
- and -
Zaitzeff Law Professional Corporation; Alexander Sandy Zaitzeff, an individual; Steven McGilligan, an individual; and Nancy Erickson, an individual
L. Scrimshaw, for the Defendants
Defendants
HEARD: Via Written Submissions, at Thunder Bay, Ontario
Mr. Justice T.A. Platana
Decision On Costs
1On January 8, I released reasons dismissing the Plaintiff’s motion for partial summary judgment and awarded costs to the Defendants, to be submitted in writing.
2Mr. Scrimshaw, for the Defendants, now seeks costs on a full indemnity or, in the alternative, a substantial indemnity basis.
3He makes the following submissions in relation to the factors set out in r. 57.01(1):
a. The Plaintiff sought approximately $600,000.00 in the motion;
b. The motion was complex because there was no clear delineated focus on the issues and because of the number of issues raised;
c. The motion was important in that it could have impacted the outcome of the entire action;
d. The Plaintiff acted unreasonably by casting a wide range of allegations, which significantly complicated and unnecessarily lengthened the motion;
e. The motion materials were so devoid of compelling or conclusive evidence that the motion had little chance of success, and therefore, was brought improperly.
f. The counsel rates of $350.00/hour for actual rate, $315.00/hour on a substantial basis, and $210.00/hour on a partial basis are reasonable for Mr. Scrimshaw, called in 1981. Further, rates charged for junior counsel and a clerk are reasonable.
4Mr. Scrimshaw provides a cost outline of $11,880.02, including disbursements and HST, on a partial indemnity basis; $17,252.83, inclusive, on a substantial indemnity basis, and $19,043.77, inclusive for full indemnity.
5The Plaintiff submits that costs should be reserved to the trial judge on the basis that I, as the motion judge:
a. Did not consider any of the sworn evidence produced by the Plaintiff;
b. Did not review and/or properly digest the facts;
c. Failed to hear submissions on the Plaintiff’s bonafide request for reconsideration of the motion;
d. Failed to consider the Plaintiff’s request for a mini-trial;
e. Failed to give the Plaintiff an opportunity to cure any issues with respect to the failure to present properly sworn exhibits.
6The Plaintiff submits that it would be a miscarriage of justice to award costs against an already impoverished Plaintiff.
7The awarding of costs is in the discretion of the court. R. 57.03(1) mandates the court to fix costs and r. 57.01(1) sets out the factors to be considered. I state incidentally that I reject the Plaintiff’s submissions that costs should be reserved to the trial judge. Having heard the motion, and having seen the materials presented, and the manner of presentation, I am in the best position to consider the issue of costs.
8Considering the factors set out in r. 57.01(01), I am satisfied that the hourly rates for counsel and clerk are reasonable.
9I accept that more time than might otherwise have been necessary to respond was required as a result of the nature of the relief claimed in the motion, and the manner in which the affidavit, and other materials was presented.
10The Plaintiff has argued that by presenting a Bill of Costs using “Block Billing”, the Plaintiff and the Court are precluded from determining whether the costs were reasonable or not. I find that the total of 59.9 hours billed for counsel and clerk should be reduced to some extent.
11This motion was made more complex than necessary because of the manner in which it was presented.
12I award costs to the Defendants on a substantial indemnity basis in the amount of $12,000.00 plus HST, and $1,134.40 plus HST for disbursements.
“Original signed by”
The Hon. Mr. Justice T. A. Platana
Released: April 10, 2018
COURT FILE NO.: CV-15-0405-00
DATE: 2018-04-10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Gordon Gravelle o/a Rapidkey Industries
Plaintiff
- and -
Zaitzeff Law Professional Corporation; Alexander Sandy Zaitzeff, an individual; Steven McGilligan, an individual; and Nancy Erickson, an individual
Defendants
DECISION ON COSTS
Platana J.
Released: April 10, 2018
/sab