Court File and Parties

COURT FILE NO.: 11-24760 DATE: October 19, 2018

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

June Duby and Dustin Duby a minor by his Litigation Guardian June Duby Plaintiffs

COUNSEL: Irwin D. Ozier, for the plaintiffs

- and -

1583170 Ontario Inc. and UBS Management Inc. and Big Bear Food Inc. and Big Bear Food Ltd. And Big Bear Foodmart Inc. and Hassan Khalife Defendants

COUNSEL: J. Claude Blouin, for the defendant 1583170

HEARD IN WRITING: October 19, 2018

ENDORSEMENT ON COSTS

INTRODUCTION

[1] This matter involved a personal injury claim as a result of a slip and fall in a plaza in front of a Big Bear Food store.

[2] The plaintiffs’ action has settled and all other matters have been resolved. I have approved the settlement of the infant plaintiff.

[3] The only outstanding issue is that of costs between 1583170 Ontario Inc., the owner of the plaza where the store was located, and Big Bear Food Inc., Big Bear Food Ltd., and Big Bear Foodmart Inc., the Franchisor.

FACTS

[4] The plaintiff commenced this action against all defendants in February 2011.

[5] The Big Bear defendants were the Franchisor and they appear to have had no interest in property. The defendant Khalife was the tenant who ran the store under the name Big Bear as Franchisee.

[6] It appears that early in the litigation, counsel for the Big Bear franchisor sent a letter to all counsel indicating his client had no interest in the property and that Mr. Khalife, the franchisee, was the tenant operating Big Bear Food Mart. He requested that he be let out of the action.

[7] It appears all parties agreed to the franchisor being released from the action, except 1583170 Ontario Inc.

[8] 1583170 Ontario Inc. indicates, that as it was the corporation which owned the land, and the Big Bear Food logo was prominently displayed on the store, they concluded that Big Bear Food companies were a necessary party to this action. They submitted that they requested documentation regarding the franchise operation, and the response was there was no such documentation as this was an oral franchise. Apparently this raised concerns with the defendant 1583170 Ontario Inc. and they made the decision to keep the Big Bear Food companies in the actions despite the very clear warning on several occasions that costs would be demanded.

[9] The Big Bear defendants therefore had to file a defence and an affidavit of documents, although it was relatively short and consisted of only two schedule A documents.

[10] Counsel for the defendant Big Bear Food companies concluded he would have to attend the various discoveries. He also concluded he would have to attend mediation and the pretrial, prepare for same, and prepare mediation and pretrial briefs. I note both were proforma simply indicating the clients had no interest in the action and should be let out.

[11] I am advised that no one was produced from the Big Bear Food company defendants at discoveries. I am also advised that counsel for that defendant played a very minor role in the discoveries.

ANALYSIS

[12] It was agreed at the pretrial that all aspects of this matter would settle and that the Big Bear food companies would be let out of the action subject to the determination by me as to appropriate costs that should be awarded to them from 1583170 Ontario Inc.

[13] It is clear that all parties, except 1583170 Ontario Inc. consented to the Big Bear Food companies being released from the action at an early stage.

[14] 1583170 Ontario Inc. was warned on several occasions that if they insisted that the Big Bear Food companies remain in the action, costs would be sought against them.

[15] The Big Bear Food companies, upon all parties agreeing that it was simply the franchisor, had no interest in the property and they should have been released from the action. Further it does not appear that they were a party that was going to contribute in any way towards the settlement, which they did not, nor were they a party which had any evidence to add of any significance to anyone else involved in the lawsuit.

[16] I conclude that the defendants Big Bear Food companies are entitled to costs and I conclude that those costs should be on a partial indemnity basis as this party is a defendant and based on the total circumstances of this case.

[17] The costs being requested are just over $80,000.00. That is excessive to me given the lack of exposure on the Big Bear Food companies’ part, and taking into account Rule 57.01, s. 131 of the Courts of Justice Act, and proportionality. I have also noted that the counsel for the Big Bear Food companies is senior charging $500.00 per hour and spent 141 hours on a case with no exposure to his client. That is an excessive number of hours given his clients risk factor. I am also of the view that this case should have been handled almost exclusively by a very junior counsel at a much lesser hourly rate. Certainly the client may have wished senior counsel on the file exclusively and attend all aspects of it but the client cannot expect the party paying costs to be responsible for such fees.

[18] The Court of Appeal has stated that the overriding principle for a court in exercising its discretion when awarding costs is reasonableness. Davies v. Clarington (Municipality) 2009 ONCA 722, [2009] 100 O.R. (3rd) 66 (OCA) at paras. 51 and 52.

[19] As noted by Armstrong J.A. in Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3rd) 291(OCA) the fixing of costs involves more than merely a calculation using the hours docketed and the cost grid. He further stated in para. 24, “In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.”

[20] I conclude that fair and reasonable costs that should be paid by 1583170 Ontario Inc. to the Big Bear Food Companies is $35,000.00 inclusive of disbursements and HST within 30 days of the release of this decision.

___________________________ Arrell, J.

Released: October 19, 2018