Court File and Parties

COURT FILE NO.: 06-CL-6732

DATE: 20181207

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Brand Name Marketing Inc., Plaintiff

AND:

Rogers Communications Inc., Rogers Wireless Inc./Rogers Sans-Fil Inc. and Rethink Breast Cancer, Defendants

BEFORE: Mr. Justice H.J. Wilton-Siegel

COUNSEL: Christopher J. Cosgriffe, for the Plaintiff

Mark Wiffen, for the Defendants

HEARD: In Writing

COSTS ENDORSEMENT

[1] Rogers Communications Inc. and Rogers Wireless Inc./Rogers Sans-Fil Inc. (collectively, the “defendant”) was successful in this trial. The defendant is entitled to costs on a partial indemnity basis. It seeks costs on that scale in the amount of $346,561.72 on an all-inclusive basis. The plaintiff submits that an appropriate amount would be $252,302.96 to give effect to three matters to which it objects in the defendant’s costs, which are addressed below. In this Endorsement, defined terms have the meaning ascribed thereto in the Court’s Reasons for Judgment dated November 6, 2017.

[2] First, the plaintiff suggests that the amount of $29,520 claimed under Examinations for Discovery and Answers to Undertakings is unreasonable. It suggests that a more reasonable amount would be $14,760 based on the fact that each of the two examinations took less than a full day.

[3] I have not accepted this argument for the reason that it ignores the time for preparation and the fact that the Boynton examination took place on two separate days.

[4] Second, the plaintiff submits that the hourly rate for Mr. Simpson of $450, on a partial indemnity basis, is too high and should be reduced to $350 as a rate that an opposing party would reasonably expect to pay. This reduction would total $20,500.

[5] I have also not accepted this argument for the reason that, assuming Mr. Simpson’s actual hourly rate to be $850 as the costs submissions state, the hourly rate of $450 is actually below the range of 55-60% of actual rates customarily applied today. The plaintiff’s principals were experienced businessmen. Given the nature of their claim and the amount sought, they would have, or at least should have, expected that the defendant would engage senior counsel whose hourly rates would have approximated Mr. Simpson’s rate. Further, there is also no basis in the record for a further reduction of his rate on the basis of the particular circumstances of the plaintiff.

[6] Third, the plaintiff argues that the disbursement of $79,414.96 representing the cost of the Pearce Report is excessive. It submits that the defendant should be awarded $25,000 for this Report.

[7] I agree that the cost of the Pearce Report should be reduced to reflect the work attributable to the Excluded Portion of the Pearce Report, which the Court held should be excluded for a number of reasons. On the other hand, while the plaintiff has objected to the absence of an account from Dr. Pearce with which to assess the reasonableness of the Pearce Report, it has not produced its own invoice for the White Report. Therefore, the Court does not have the benefit of a standard against which to independently assess the reasonableness of the cost of the Pearce Report. Accordingly, I have reduced the costs attributable to the Pearce Report by $22,500, which represents my assessment of the proportion that the Excluded Portion represented of the complete Pearce Report.

[8] In reaching my determination of fair and reasonable costs of the action, I have considered the foregoing matters. I have also taken into consideration the amount involved, the number and complexity of the claims involved, including the extensive factual background necessary to address these claims, the extent of pre-trial proceedings, and the length of the trial. In regard to the reasonable expectations of the plaintiff, I note that the plaintiff has not included its own costs outline against which the Court could assess the time and total fees of the defendant’s counsel. However, I also note that the plaintiff’s two fee-related submissions would only have reduced the defendant’s legal fees by approximately 15%, which suggests that its own legal fees did not differ materially from the defendant’s legal costs reduced by such amount.

[9] Based on the foregoing, I find fair and reasonable costs of the action to be $315,000 on an all-inclusive basis.

Wilton-Siegel J.

Date: December 7, 2018