Court File and Parties
COURT FILE NO.: 4946/12 DATE: 2019/06/19
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Joshua West and Robert West Plaintiffs
- and -
Gordon Knowles and Robin West Defendants
Counsel: C. Richard and K. Book for the Plaintiffs J. Fitzpatrick, for the Defendant Robin West
Before: The Honourable Mr. Justice D.L. Edwards
COSTS ENDORSEMENT
[1] The plaintiff, Joshua West, was involved in a motor vehicle accident on June 5, 2010, while as a passenger in the car driven by the defendant, Gordon Knowles, and owned by the defendant, Robin West. Mr. Knowles drove into a tree. Following a four-week trial before a jury, the jury returned a verdict in which it granted $160,000 for general damages, $50,000 for past loss income and $500,000 for future loss of income.
[2] Joshua West now seeks a cost award for fees and disbursements against the defendant in the amount of $481,134.49 inclusive of HST. The defendant submits that the appropriate range for Joshua West’s fees would be $125,000-150,000 plus disbursements and HST. Also, the defendant seeks a cost award against the plaintiff, Robert West, in the range of $9,000-15,000 plus HST.
[3] Counsel for Joshua West submits that he should receive costs on a substantial indemnity basis since he was more successful at trial than what was contained in his Rule 49 offer. Defence counsel asserts that under the Rules, the plaintiff is only entitled to partial indemnity rates up to the date of their offer, which was February 27, 2019.
[4] Joshua West’s counsel seeks an indemnity rate of $500 per hour for two counsel, one of 17 years’ experience and one of 20 years’ experience. Defence counsel asserts that a more appropriate range would be $350-400. Further, he submits that this case did not warrant two senior counsel at trial, and that if two counsel were required at trial, a more appropriate substantial indemnity rate would be $200.
[5] Counsel for Joshua West submit that the trial was unnecessarily lengthened by pursuit of theories by the defence counsel which were without merit, and which were abandoned completely by the defendants’ expert witness, Elaine MacNiven, and by an unnecessary threshold motion.
[6] Defence counsel asserts that a threshold motion is always necessary. Further, he submits that the hours claimed for preparation for trial including offer to settle and preliminary motions are excessive. He notes that Joshua West’s counsel has not provided time dockets, and therefore one should assume that they are mere retroactive estimates. He asserts that a rule of thumb is that trial preparation time is approximately equal to trial attendance time and, on that basis, approximately 200 hours of preparation split between a senior and junior counsel would be appropriate.
[7] Defence counsel also asserts that the defendant should be awarded costs, at least on a partial indemnity basis, for the defence of Robert West’s claim to the date of trial when it was dismissed. As well, he seeks costs for its successful motion at trial determining whether the plaintiff could call the defendant as a witness as an adverse party. Based upon the respective claims of the two defendants, he submits that 1/11th of the preparation time of 200 hours at rates of $500 or $250 for substantial or partial indemnity. He also claims 21 hours with respect to the motion.
[8] Defence counsel also asserts that certain disbursements are excessive and should not be allowed.
Analysis
[9] In exercising my discretion under Section 131 of the Courts of Justice Act, Rule 57.01 of the Rules of Civil Procedure sets out the factors that I should consider in fixing costs.
[10] Rule 57.01 states:
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
(i) any other matter relevant to the question of costs. R.R.O. 1990, Reg. 194, r. 57.01 (1); O. Reg. 627/98, s. 6; O. Reg. 42/05, s. 4 (1); O. Reg. 575/07, s. 1.
[11] My overall task is to fix an amount that is fair and reasonable for the unsuccessful party to pay in this proceeding, and not an amount fixed by the actual costs incurred by the successful litigant. Boucher v. Public Accountants Council for the Province of Ontario, at para. 24.
[12] I am satisfied that this matter was complex, the issues important, and the plaintiff’s success was very significant.
[13] When considering the amount that an unsuccessful party might reasonably expect to pay, a Bill of Costs from the party is useful. Unfortunately, the defendant did not provide me with her Bill of Costs and Joshua West’s counsel did not provide detailed time dockets.
[14] After considering all of these factors, I am satisfied that the fees claimed by Joshua West should be reduced for several reasons.
[15] First, I am satisfied that two senior counsel were not required for trial, and that a junior second chair counsel would have been more appropriate.
[16] Second, Joshua West is entitled to substantial indemnity costs only from the date of his Rule 49 offer and not before.
[17] Third, I agree that a portion of Joshua West’s counsel’s time up to trial should be allocated to Robert West and deducted from any claim by Joshua West, as the same counsel was representing both.
[18] Although there is a very large number of hours of preparation, I do not have a Bill of Costs from the defendant for comparison. I agree that there were a number of theories pursued by the defendant during the trial that were subsequently abandoned by the defendant, but for which the plaintiff had to prepare and deal with at trial. Clearly the threshold was required.
[19] After considering all of these factors, I order that the defendant pay to Joshua West costs for fees of $225,000 plus HST.
[20] I am satisfied that the disbursements claimed by Joshua West are appropriate and order that the defendant pay Joshua West the sum of $70,235.83 inclusive of HST for disbursements. As the defendant has paid $2,681.34, the disbursements outstanding are $67,554.49.
[21] The defendant seeks a cost award with respect to the motion at trial regarding the defendant Robin West. I am satisfied that the result of that motion was mixed and award no costs with respect to that motion. Joshua West had issued a summons so as to call Robin West as an adverse party witness. The defendant sought an order preventing Joshua West from calling her as a witness. I ordered that Joshua West could call Robin West, but not as an adverse witness.
[22] I am satisfied that the defendant is entitled to a cost award against Robert West, whose claim was dismissed at trial.
[23] The offer to settle from the defendant that Robert West attempted to accept was clearly an offer to settle the entire matter and was not open for one of the two plaintiffs to accept. It does not resolve the issue of costs of the action for Robert West.
[24] The issue of costs regarding Robert West was left outstanding when the action was dismissed as against him. The defendant is entitled to costs. Unfortunately, I do not have a Bill of Costs for the defendant showing the exact time incurred by him up to trial. In the circumstances, I agree that approximately 1/11th of Joshua West’s costs up to the date of trial would be appropriate.
[25] I order that Robert West pay to the defendant costs in the amount of $10,000 plus HST.
Summary
[26] In summary, I order:
- the defendant to pay the plaintiff, Joshua West, the sum of $225,000 plus HST for fees and net outstanding disbursements of $67,554.49.
- the plaintiff, Robert West, to pay costs in the amount of $10,000 to the defendant.