BARRIE COURT FILE NO.: CV-17-1145 DATE: 20190709 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
DARRYL FRIESE Plaintiff – and – ROXANA ARFA Defendant
Counsel: William J. Leslie, for the Plaintiff Samy Ouanounou, for the Defendant
HEARD: In Writing
REASONS FOR DECISION ON COSTS DiTOMASO J.
BACKGROUND
[1] This matter proceeded to trial for one day on May 13, 2019.
[2] The Plaintiff was successful in obtaining Judgment for the full amount of his claim, being $165,000 plus special damages of $2,729.29.
[3] The Plaintiff focused his case to address the issue of mitigation and called three witnesses. The Defendant also testified.
POSITIONS OF THE PARTIES
Position of the Plaintiff
[4] The Plaintiff claims fees on a partial-indemnity basis up to May 6, 2019 and on a substantial-indemnity basis from May 6, 2019 until the date of receiving Judgment in this case, for a total of fees, disbursements and HST in the amount of $22,636.99 for the following reasons:
(a) The Plaintiff was the successful party; (b) The Plaintiff delivered an Offer to Settle on May 6, 2019, six days prior to the commencement of the trial; (c) The Defendant did not accept the Plaintiff’s Offer; and, (d) The Plaintiff obtained Judgment more favourable than his Offer and therefore seeks partial indemnity costs up to May 6, 2019 and substantial indemnity costs thereafter. Pursuant to r. 49.13 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the court has discretion to make this order.
[5] In the alternative, the Plaintiff claims fees on a partial indemnity basis for fees, disbursements and HST, in the total sum of $20,937.75.
[6] The Plaintiff relies on the principles of assessing costs as set out in r. 57.01(1).
Position of the Defendant
[7] The Defendant, the unsuccessful party at trial, submits that costs ought to be awarded to the Plaintiff, the successful party, and fixed on a partial-indemnity basis. The Defendant also served an offer to settle on May 9, 2019.
[8] The Defendant submits that total hours shown on the Plaintiff’s Bill of Costs of 37.4 hours is excessive and objects to the partial-indemnity rate used by Plaintiff’s counsel of 85% of the Actual Rate, which ratio is also excessive and unreasonable.
[9] The Defendant also contests the number of hours expended by the clerk in respect of trial preparation which ought to be reserved for lawyers and not clerks. Further, it is submitted that the trial preparation of Plaintiff’s counsel ought to be reduced from 8 hours to 3 hours.
ANALYSIS
Entitlement
[10] The award of costs is discretionary. (See s. 131 of the Courts of Justice Act, R.S.O. 1990 c C. 43.) In determining costs, the court may also consider those factors set out in r. 57.01(1).
[11] I have reviewed all of the written submissions delivered by counsel, including the draft Bill of Costs, Costs Outline delivered on behalf of the Plaintiff, supporting documentation and r. 49 Offers.
[12] I find that the r. 49 Offer advanced by the Plaintiff does not attract any of the consequences of r. 49. The Plaintiff’s Offer was made less than seven days before the trial. Rule 49.03 provides that where such offer to settle is made less than seven days before the hearing commences, the costs consequences referred to in r. 49.10 do not apply.
[13] I find that the Plaintiff is entitled to fees on a partial indemnity basis throughout, together with HST and assessable disbursements.
[14] The Plaintiff was the successful party and costs follow the event.
Quantum
[15] I do not have any difficulty with the time claimed by the Plaintiff’s counsel and clerk. Referring to the Bill of Costs of the Plaintiff, the total time expended on a partial indemnity basis is 37.4 hours for counsel and 10.1 hours for the clerk.
[16] I do agree with the Defendant’s submissions that the incorrect ratio has been applied in respect of fees. The Plaintiff has applied a ratio of 85% of the Actual Rate instead of the appropriate partial-indemnity rate of 66.66%.
[17] I would therefore award partial-indemnity fees, discounted to 66.66% to the Plaintiff, plus HST and assessable disbursements, summarized as follows:
Plaintiff’s Counsel 37.4 h on partial-indemnity scale of 66.66% of Actual Rate ($18,700) $12,465.42
Clerk 10.1 h on partial-indemnity scale of 66.66% of Actual Rate ($1,262.50) $841.58
Total Fees $13,307
HST at 13% $1,729.91
Assessable Disbursements, plus HST $1,763.78
Total Fees, Disbursements and HST $16,799.69 rounded to $16,800
[18] I find these costs to be fair, reasonable and proportional. (See Davies v. Clarington (Municipality), 2009 ONCA 722, at paras. 51 and 52).
DISPOSITION
[19] I hereby order that Roxana Arfa pay the sum of $16,800, inclusive of fees, disbursements and HST to Darryl Friese for costs.
Mr. Justice G.P. DiTomaso Released: July 9, 2019