Court File and Parties
COURT FILE NO.: CV-16-555857 DATE: 20181211 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Crescent Hotels and Resorts Canada Company, Plaintiff AND: 2465855 Ontario Inc., Defendant
BEFORE: Carole J. Brown, J.
COUNSEL: Timothy Pinos and Carly Cohen, for the Plaintiff Shawn Tock, for the Defendant
HEARD: In-writing
Costs Endorsement
[1] The plaintiff, Crescent Hotels and Resorts Canada Company (“Crescent”), seeks its costs of the summary judgment motion, in which it was wholly successful and was awarded damages of $1,026,652.44 plus PJI and costs: see my decision of September 21, 2018.
[2] The plaintiff had, prior to the summary judgment motion, on February 1, 2017, served on the defendant Hotel a Rule 49 offer to settle the action in the amount of $869,541.37, which was less than the amount of damages awarded to the plaintiff at the summary judgment motion. Pursuant to Rule 49.10(2), the plaintiff is entitled to partial indemnity costs to the date of the offer to settle and substantial indemnity costs thereafter.
[3] The plaintiff has provided a detailed bill of costs broken down into fees incurred prior to the Rule 49 offer, served February 1, 2017 and fees after February 1, 2017 to May 24, 2018 in the total amount of $129,689.75, inclusive of disbursements. The amount of $7,503 was incurred prior to the Rule 49 offer to settle and the balance of the fees were incurred thereafter and prior to the summary judgment motion. With HST included, the total costs amount to $145,899.42.
[4] The defendant submits that the costs incurred by the plaintiff are excessive and should be fixed at $85,000 all-inclusive.
[5] As regards the factors set forth at Rule 57.01, to be considered in exercising my discretion to fix costs, I make the following comments:
Importance and Complexity: The matter was of significant importance to the parties. The issues were of moderate complexity and were numerous.
Experience of Counsel: Counsel were experienced. Mr. Pinos also judiciously used an associate to do the bulk of the work, as well as a student. Regarding the defendant Hotel’s submission that the 2005 Costs Grid should be referred to and used in this case, I decline to do so. I refer to the observations regarding the Costs Grid made by Wilson J in Bain v UBS Securities Canada Inc., 2017 ONSC 1472 paragraph 21 and the comments made by Newbold J in Stetson Oil & Gas Ltd. v Stiflel Nicolous Canada Inc., 2013 ONSC 5213 at paragraph 22.
Expectations and Proportionality: I do not agree with the defendant Hotel, and do not find the amount of time spent by the plaintiff to be excessive or unnecessary. I am of the view, having reviewed the number of hours spent by Mr. Pinos, Ms. Cohen and the law student, that the hours charged were not duplicative, nor unnecessary. I note, as well, that Ms. Cohen ably argued some of the summary judgment motion.
[6] Taking into consideration the factors set forth at Rule 57.01 and my comments with respect thereto, above, and in all of the circumstances of this case, I am satisfied that the costs are fair, reasonable and proportionate. The materials provided to the Court were voluminous, and most helpful. The parties had previously conducted three days of cross-examination and the summary judgment motion was argued over two days.
[7] I award the plaintiff, Crescent Hotels, its costs of the summary judgment motion in the total amount of $145,899.42, taking into account the Rule 49 offer to settle, which was served shortly after the pleadings were closed. The costs are payable within 30 days.
Carole J. Brown, J. Date: December 11, 2018