Munro v. O’Neill, 2018, ONSC 3328

Introduction

In my reasons for decision, released May 4, 2018, I invited written submissions from counsel if they were unable to agree on the issue of costs. The plaintiff was granted judgment in the amount of $41,900 and is entitled to a cost award.

[2]

Positions of the Parties

Mr. Grossman, counsel for the plaintiff, seeks an award of $47,711.63, on a substantial indemnity basis, alternatively $36,329.99 on a partial indemnity basis. Ms. Rodenburg, counsel for the defendant, suggests a reasonable award, on a partial indemnity basis, is in the range of $22,474 to $25,181.

[3]

Analysis and Decision

In my view, a reasonable cost award, on a partial indemnity basis, is $30,434.14, being fees of $23,000, HST of $2,990 and disbursements of $4,444.14. I so order.

4Partial indemnity costs are appropriate as neither of the parties’ offers to settle attract Rule 49 consequences. Substantial indemnity costs cannot be awarded in lieu of a possible punitive damage claim.

5Experts were retained by both parties. One of the plaintiff experts did not comply with Rule 53. His report was of no assistance. In her testimony at trial, the plaintiff accepted the quantification of damages by the defendant’s expert. This was not disclosed prior to trial. These two factors ought to have been addressed prior to trial. It should have led to a resolution.

6The issue of costs ought to have been resolved by counsel. This was not a difficult issue. Yet, I am informed the plaintiff wanted the court to decide the claim.

7I reject the disbursement for the expert who provided a defective report and the plaintiff’s travel expense. Some fee reduction is warranted for the above reasons.

D.J. Gordon J.