BARRIE COURT FILE NO.: 17-1149-SR

DATE: 20180514

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

BARRIE LEASING SERVICES INC.

Plaintiff

– and –

MICHELE WAINMAN and RICHARD WAINMAN

Defendants

Jack R. Armstrong, for the Plaintiff

Daniel J. Wyjad, for the Defendants

HEARD: In Writing

REASONS FOR DECISION ON COSTS

DiTOMASO J.

BACKGROUND

[1] On February 15, 2018, this court heard two motions. The Plaintiff, Barrie Leasing Services Inc. (Barrie Leasing) moved for summary judgment and possession of land subject to a mortgage in favour of Barrie Leasing, which was in default. This motion for summary judgment was opposed by the Defendants, Michele Wainman and Richard Wainman (the Wainmans). Further, the Wainmans brought a counter-motion for an order consolidating this action with two other actions involving the same parties surrounding the financing, purchase and construction of a property on Lake Muskoka.

[2] Barrie Leasing’s motion for summary judgment related to a mortgage on a property located on Kahshe Lake. The Wainmans submitted that the issues in respect of the Kahshe Lake mortgage and the Lake Muskoka mortgages were inextricably intertwined and that the Kahshe Lake action (being the subject matter of these proceedings) be consolidated with two prior actions involving the Lake Muskoka property scheduled for trial at Barrie in May 2018.

[3] Barrie Leasing submitted that the Kahshe Lake mortgage was a “stand alone” mortgage and that the motion for consolidation was opposed.

[4] The Wainman’s motion to consolidate and stay was dismissed. Summary judgment was awarded to Barrie Leasing on the outstanding mortgage and in respect of a forbearance agreement. Also, vacant possession of the Kahshe Lake lands was awarded to Barrie Leasing, together with a Writ of Possession.

[5] The parties agreed that costs would be determined by way of written submissions. I have received those submissions and these are my reasons on costs.

POSITIONS OF THE PARTIES

Position of Barrie Leasing

[6] Barrie Leasing takes the position that it is entitled to substantial indemnity costs, given that this mortgage has been outstanding for seven years without payment.

[7] It is submitted that the conduct of the Wainmans ought to attract this higher scale of costs. Barrie Leasing claims fees from June 15, 2017 to March 22, 2018 in the amount of $25,909, together with HST in the amount of $3,368.17. This is based on the expenditure of 99.65 hours at a docketed rate of $260. There is also an estimated fee for appearance in the amount of $1,645 and disbursements plus HST in the amount of $1,221.41. In total, Barrie Leasing seeks costs for the action and summary judgment motion in the amount of $32,143.58, all inclusive.

Position of the Wainmans

[8] The Wainmans submit that their conduct does not attract an award of substantial indemnity costs. There was a forbearance agreement in force between the parties even at the time that Barrie Leasing commenced its action. In addition, there were live issues in respect of the amount that was claimed. These issues related to charges allegedly in contravention of the Interest Act and an alleged refusal on the part of Barrie Leasing to provide a proper accounting statement in contravention of the Mortgages Act. It is submitted that the conduct of Barrie Leasing should be taken into account when, under Rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg.194, the court asks whether any step of the proceeding was improper, vexatious or unnecessary, or taken through negligence, mistake or excessive caution.

[9] As for the fees charged by counsel for Barrie Leasing, the actual fees charged to Barrie Leasing was in the amount of $260 per hour. It is submitted that partial indemnity recovery should be at 60% of $260 per hour or $156 per hour.

[10] There was also an issue in respect of work done which was characterized as secretarial, which should attract a discount. There was also some question about photocopy charges.

ANALYSIS

Entitlement

[11] The award of costs is discretionary. See s.131 of the Courts of Justice Act, R.S.O. 1990 C.43. In determining costs, the court may also consider those factors set out in rule 57.01(1) of the Rules of Civil Procedure.

[12] I have reviewed all of the written submissions delivered by counsel.

[13] Barrie Leasing was entirely the successful party on these two motions. Accordingly, costs follow the event and Barrie Leasing is entitled to its costs of both the action and costs in respect of these two motions.

[14] The question then becomes what would be the appropriate scale of costs. I do not agree that the conduct of the Wainmans is so egregious that substantial indemnity costs ought to be awarded. Their conduct does not attract the condemnation or disapproval of this court. There was a forbearance agreement between the parties in place at the time the action was commenced, which was to deal with the forbearance of the mortgage upon payment by the Wainmans of a stipulated fee. There were a number of live issues extant involving amounts claimed that were allegedly excessive.

[15] I find that in all the circumstances, Barrie Leasing is not entitled to its fees on a substantial indemnity scale. Rather, I find that Barrie Leasing is entitled to its fees on a partial indemnity scale.

Quantum

[16] I take no issue in respect of the number of hours spent in respect of this matter at 99.65 hours. Counsel for Barrie Leasing charged his client $260 per hour, not $350 per hour. The sum of $260 per hour is the hourly rate which is considered here.

[17] While I am not inclined to reduce the hours spent at 99.65 hours, I find that Barrie Leasing is only entitled to partial indemnity rate of 66%, as it relates to the amount claimed for fees.

[18] I would therefore award partial indemnity fees discounted to 66% as follows:

(a) Fees claimed from June 15, 2017 to March 22, 2018 (99.65 hours) at $260.00 per hour, on a substantial indemnity scale is the sum of $25,909;

(b) At partial indemnity rate of 66%, those fees would then be discounted to the sum of $17,099.94; and,

(c) Together with HST at 13% is $2,222.99, for a total of $19,322.93.

[19] There is an estimated fee for appearance in the amount of $1,645. I discount this amount to nil, as it has already been claimed in the fees and hours spent, reflected above.

[20] I award disbursements in the amount of $1,221.41, as claimed.

[21] Therefore, I fix costs as follows:

(a) Fees, together with HST: $19,322.93

(b) Disbursements, together with HST: 1,221.41

(c) Total $20,544.34

There shall be no discount for some alleged secretarial work and photocopy fees.

[22] I find these costs to be fair, reasonable and proportional. See: Davies v. Clarington (Municipality), 2009 ONCA 722 at paras. 51 and 52.

DISPOSITION

[23] I hereby order that Michele Wainman and Richard Wainman, jointly and severally, pay the sum of $20,544.34, all inclusive for costs, to Barrie Leasing Services Inc., within the next thirty days.

DiTOMASO J.

Released: May 14, 2018