Court File and Parties

Court File No.: CV-18-00604396 Date: 2019-06-13 Superior Court of Justice - Ontario

Re: Drew Keith Allen and Susan Michelle Byrne, Applicants – AND – Meghan Ann MacDougall and Nigel Hamid Scott, Respondents

Before: E.M. Morgan J.

Counsel: Christopher Cosgriffe and Heidi LeBlanc, for the Applicants Nader Hasan and Benjamin Kates, for the Respondents

Heard: Costs submissions in writing

Costs Endorsement

[1] On March 27, 2019, I issued my judgment in this Application dismissing the Applicant’s request for an order authorizing the removal of a large tree straddling the boundary line between the Applicants’ and Respondents’ properties. I indicated that as the successful party the Respondents are entitled to their costs.

[2] Fixing costs is a discretionary exercise under s. 131 of the Courts of Justice Act. In the ordinary case, absent some exceptional circumstance, costs go to the successful party on a partial indemnity basis: Titcher v Toronto District School Board, 2003 9624, at para 3 (ONSC). The process is not an assessment line-by-line of the successful party’s Bill of Costs, but rather reflects a judgment as to the fairness and reasonableness of the costs request, having particular regard to the parties’ expectations in the circumstances: Boucher v Public Accountants Council (2004), 71 OR (3rd) 29, at para 27 (Ont CA); see also Rule 57.01(1)(0.b) of the Rules of Civil Procedure.

[3] There are no special circumstances here which would cause me to deviate from the usual award of costs to the successful Respondents. The one thing that I will take into account in the Respondents’ favour is the fact that they made an offer to settle on February 14, 2019 which was still open for acceptance at the outset of the hearing. Rule 49.13 allows me to take into account any offer to settle made in writing, the date of the offer, and the terms of the offer in exercising my discretion in fixing costs. The Respondents’ offer for the parties to mutually consent to a dismissal of the Application in return for the Applicants’ payment of the Respondents’ partial indemnity costs. Had that offer been accepted, the parties would be exactly where they are today, except that the court and the parties would have been saved the time and expense of a full hearing.

[4] The Application, although hotly contended by the Respondents, was not a frivolous one. The Applicants were certainly within their rights to insist on having their day in court. However, the Respondents’ offer a month before the hearing, made in anticipation of the final, time-intensive preparations for the hearing, put the Applicants to a choice: drop the case and pay partial indemnity costs, or continue with the case and potentially pay partial indemnity costs up until the date of the offer and substantial indemnity costs incurred thereafter. They chose the latter route.

[5] Counsel for the Respondents seek costs and disbursements on a partial indemnity scale up to February 14, 2019 and a substantial indemnity scale after that date, for a total of $77,091.35. They have submitted a Bill of Costs supporting this amount, and, at the request of Applicants’ counsel, have produced their dockets for the entire case. There is nothing untoward revealed in the Respondents’ supporting materials; they demonstrate that Respondents’ counsel worked hard, put in a substantial number of hours in preparation, retained an expert witness whose report featured prominently in my decision, and generally invested what it took to win the case.

[6] Counsel for the Applicants point out that on a partial indemnity scale the Respondents’ costs were some $30,000 more than the Applicants’ costs. They attribute the difference primarily to the fact that the senior-most counsel in this matter for the Respondents, a 12-year lawyer, billed his time at $525/hour while the senior counsel for the Applicants, a 20-year lawyer, billed his time at $500/hour. They add that the Respondents had two counsel attend at the cross-examinations when one would have sufficed.

[7] I am not inclined to question the Respondents’ counsel’s investment of time or their choices of how to staff each step of the proceeding. Their approach paid off, and I will not second guess what is in any case a reasonable approach. The attendance at cross-examination of two counsel rather than just one is not unheard of in today’s civil litigation and does not strike me as a form of overkill.

[8] As for the hourly rates and relative seniority of the respective counsel, neither seems out of line to me. I take Applicants’ counsels’ point that Respondents’ counsel’s billing rates are higher for less years of seniority. The differences, however, are not excessively large, and strike me as well within the bounds of law firms’ current billing rates. Both sets of counsel here did a good job, each was well worth the fees they charged their respective clients, and each have set their rates in accordance with their own business and marketing approach to their professional services. Although the comparison between the two law firms shows some disparity, both are within the scope of reasonableness. I would not interfere with Respondents’ counsels’ costs requests based on their hourly rates or their staffing of the file.

[9] Rounding off the Respondents’ request slightly, the Applicants shall pay the Respondents a total of $77,000 in costs, inclusive of all fees, disbursements, and HST.

Morgan J.

Date: June 13, 2019