Fyfe v. Vardy (Dial A Bottle), 2018 ONSC 6563

NEWMARKET COURT FILE NO.: CV-16-127625-00

DATE: 20181101

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jill Fyfe and Dan Arthur Stephens (a.k.a. Steven Daniels)

Plaintiffs

– and –

Glen Edward Vardy, carrying on business as Dial A Bottle

Defendants

Colin A. Brown, for the Plaintiffs

Satish Mandalagiri, for the Defendants

HEARD: In Writing

REASONS FOR DECISION ON COSTS

VALLEE, J.:

1The plaintiffs were awarded $94,874.27 on a motion for summary judgment, heard on August 3, 2018. The issues were complex. The matter concerned a franchise agreement. The parties were cross-examined on their affidavits. This was heard as a long motion.

2On July 20, 2018, the plaintiffs made an offer to accept $87,697 plus costs. According to Rule 49.10, the plaintiffs are entitled to partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter. The plaintiffs request $26,355.17 all inclusive.

3Plaintiffs’ counsel provided a breakdown of work done beginning on July 23, 2018, after the offer was made. At counsel’s hourly rate of $380 and his clerk’s rate of $145, the fees total $6,927. I find that the hourly rates are reasonable, as is the time spent.

4Plaintiffs’ counsel also provided a costs outline for work done from the beginning of the matter up to and including arguing the motion, as well as preparing the costs outline and submissions. This obviously includes the work done after the offer. The plaintiffs request $21,837.73 for fees including HST, and disbursements including HST of $4,517.44.

5The court’s discretion to fix costs is found in s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C43. Rule 57.01 of the Rules of Civil Procedure sets out factors that the court should consider in assessing and fixing costs.

6Ultimately, in fixing an amount for costs, the overriding principles are fairness and reasonableness. See Boucher v. Public Accountants 2004 14579 (ON CA), 71 O.R. (3d) 291.

7In my view, a fair, reasonable and proportionate costs award for this matter is $26,355.17, all inclusive, which the defendant shall pay to the plaintiffs within 30 days.