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
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
[1] On 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.
[2] Mr. Scrimshaw, for the Defendants, now seeks costs on a full indemnity or, in the alternative, a substantial indemnity basis.
[3] He 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.
[4] Mr. 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.
[5] The 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.
[6] The Plaintiff submits that it would be a miscarriage of justice to award costs against an already impoverished Plaintiff.
[7] The 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.
[8] Considering the factors set out in r. 57.01(01), I am satisfied that the hourly rates for counsel and clerk are reasonable.
[9] I 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.
[10] The 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.
[11] This motion was made more complex than necessary because of the manner in which it was presented.
[12] I 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