COURT FILE NO.: CV-18-0179-00
DATE: 2019-04-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
WILLEM DINGEMANSE / MARYLIN DINGEMANSE
Self-Represented, Plaintiffs
Plaintiffs
- and -
HYDRO ONE NETWORKS INC.
M. Caceres, for the Defendant
Defendant
HEARD: via written submissions
Madam Justice T. J. Nieckarz
Decision On Costs
Introduction:
[1] This Decision on Costs relates to motions brought by each of the Defendant and the Plaintiffs to strike the pleadings of the other. Specifically, the Plaintiffs’ motion was to “strike down Hydro One Network’s Statement of Defence reverse it to a Confession” [sic]. The Defendant’s motion to strike was brought pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure, as disclosing no reasonable cause of action.
[2] For reasons delivered in Dingemanse v. Hydro One Networks Inc., 2019 ONSC 103, I denied the Plaintiffs’ motion to strike and granted the Defendant’s motion, subject to the right of the Plaintiffs to file a new, Amended Statement of Claim within 45 days. To summarize, I found as follows:
That the Defendant’s Amended Statement of Defence complied with the rules of pleadings and disclosed material facts in support of a reasonable defence to the Plaintiffs’ claims;
That the focus of the Plaintiffs’ argument in support of the motion was more akin to a summary judgment claim;
That the Plaintiffs’ pleadings were extremely problematic as drafted and could not be rectified by mere amendments; and
That the Statement of Claim, which relied on allegations of statutory breaches such as an alleged breach of the Criminal Code, disclosed no reasonable cause of action.
[3] The Defendant was successful on both motions. The Defendant now claims its costs of the motions, fixed in the amount of $4,697.97 on account of fees and $2,526.69 on account of disbursements, for a total of $7,224.66 (inclusive of H.S.T.). The Plaintiffs do not appear to challenge the Defendant’s entitlement to costs. The issue to be determined is the appropriate amount.
The Law:
[4] An award of costs is in the discretion of the court by virtue of s. 131(1) of the Courts of Justice Act, which provides:
Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in the proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid.
[5] The discretion of the court is to be exercised in light of the facts and circumstances of the case in relation to the factors provided for in Rule 57.01(1). In addition to the outcome and any offers to settle that were made, the rule provides for consideration of the following factors:
57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and
(iii) any other matter relevant to the question of costs.
[6] A costs award must be fair and reasonable. It is not just a mechanical exercise of considering hours and rates. It should also reflect the reasonable expectations of the parties and seek to balance the indemnity principle with the fundamental objective of access to justice: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) at paras. 37-38; Andersen v. St. Jude Medical Inc., 2006 85158 (ONSC Div. Court) at para. 22.
[7] Unless the court is satisfied that a different order would be more just, Rule 57.03 directs that the court shall fix the costs of a motion and order them to be paid within 30 days.
Analysis:
[8] As indicated above, the total fees sought by the Defendant amount to $4,697.97, inclusive of H.S.T. This is based on a partial indemnity rate of $225.00 per hour for Ms. Caceres, a lawyer with 15 years’ experience. Ms. Caceres claims a total of 16.5 hours for all items related to the review of the Statement of Claim, preparation of the Statement of Defence, preparation for the motion (including preparation of materials and review of the Plaintiffs’ materials). A total of 8 hours at $40.00 per hour is claimed for law student time, and another 2.5 hours for administrative time at $50.00 per hour.
[9] The rate actually claimed for Ms. Caceres is less than the $250.00 per hour rate that was suggested as reasonable by the Plaintiffs in their submissions dated March 18, 2019. I find that the rate claimed by Ms. Caceres, the student-at-law and administrative staff are all reasonable.
[10] In reviewing the Bill of Costs, the Defendant has claimed 4.5 of the total 16.5 hours for Ms. Caceres to review the Statement of Claim and prepare the Statement of Defence. I acknowledge that had I outright dismissed the action, without leave afforded to the Plaintiffs to file a new Statement of Claim, these would be appropriate costs to seek. Given that leave was granted for the Plaintiffs to file a new Statement of Claim, and issues pertaining to that claim as well as a further motion to strike this claim will be argued before me on May 28, 2019, I am inclined to defer a determination of these costs of the action until the action is determined on a final basis. While I appreciate that some of those costs are wasted fees incurred by the Defendant as a result of the claim that was struck, it remains to be seen at this point as to whether some of the time spent on the original Statement of Defence will reduce the time required to prepare the new Statement of Defence. Therefore I find that these costs of the action are better left to determination at a later date.
[11] Having said this, given the factors outlined in Rule 57.01 I find that the balance of the fees claimed by the Defendant are very reasonable given the nature of the motion and the importance to the parties. I fix the fees payable by the Plaintiffs to the Defendant, on account of the motions at $3,808.00.
[12] The Defendant also claims $2,526.69, inclusive of H.S.T. on account of taxable disbursements.
[13] Included in the Defendant’s claim is $175.00 for filing the Statement of Defence. For the same reasons set out in paragraph 10 herein, I do not allow this disbursement. This is best left to a determination of the costs of the action once the action is determined on a final basis.
[14] The Plaintiffs take issue with any disbursements related to travel costs, claiming that Ms. Caceres should have availed herself of the technology available through the court to attend either by video or teleconference or Court Call. No fees were claimed by the Defendant for travel for the motions. The disbursements claimed by the Defendant relative to travel are $1,155.91.
[15] I do not accept the Plaintiffs’ argument with respect to the travel costs incurred by the Defendant for the argument of the motion. The motion was somewhat lengthy. The Defendant was represented by in-house counsel, and the Plaintiffs knew this. They knew where Ms. Caceres was located. Given the nature and the length of the motion it was not unreasonable for Ms. Caceres to choose to attend in person.
[16] Having said this, I do not find that the amount of the flight cost is a reasonable cost for the Plaintiffs to fully incur. The Defendant states that the airfare cost is significant due to weather issues, which resulted in Ms. Caceres’ flight being cancelled, and having to rebook a different flight on the same day. While I appreciate that weather related delays are beyond the control of either party, I do not find that this is a cost that would have been within the reasonable expectation of the Plaintiffs. I find that a reasonable, round-trip airfare to Thunder Bay, including checked bag fees, is $600.00 and this is the amount that I allow.
[17] I am prepared to accept the Plaintiffs’ argument with respect to the disbursement of $905.98 incurred to retain an agent to appear on August 2, 2019 to seek an adjournment of the Plaintiffs’ motion. I was the judge who heard that argument. In the circumstances, it was quite evident that an adjournment would be granted. This is a matter that the Defendant could have dealt with by Court Call without the necessity of retaining an agent and without that agent having to incur the cost of familiarizing themselves with the file. I have added an additional hour to the fees allowed to the Defendant to account for this appearance. I have disallowed the disbursement of $905.98.
[18] The Plaintiffs made no submissions with respect to their ability to pay a costs order within 30 days as is otherwise required by Rule 57.03. Therefore there is nothing to suggest to me that the usual order, requiring payment within 30 days is unjust. In light of the foregoing the Plaintiffs are hereby ordered to pay to the Defendant the total sum of $4,698.00 within 30 days of the date of these Reasons.
“Original signed by” The Honourable Madam Justice T.J. Nieckarz
Released: April 25, 2019
COURT FILE NO.: CV-18-0179-00
DATE: 2019-04-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
WILLEM DINGEMANSE / MARYLIN DINGEMANSE
Plaintiffs
- and -
HYDRO ONE NETWORKS INC.
Defendant
DECISION ON COSTS
Nieckarz J.
Released: April 25, 2019
/sab