DATE: 2019-07-30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: NORA VAHLE, HAROLD VAHLE, DRAZENA MAMIC And ESTATE OF MARIJA VAHLE, Deceased, Plaintiffs

AND:

GLOBAL WORK & TRAVEL CO. INC., Defendant

BEFORE: Schabas J.

COUNSEL: Vibhu Sharma, Counsel, for the Plaintiffs

Elizabeth Bowker and Chris Afonso, Counsel, for the Defendant

HEARD: May 23, 2019

COSTS ENDORSEMENT

[1] On June 13, 2019 I released my decision in this matter dismissing the defendant’s motion to stay or dismiss the action on the grounds that the Court lacked jurisdiction or was not the convenient forum for the action. I sought written submissions on costs, which have now been received.

[2] The plaintiffs were entirely successful on the motion and have provided an outline seeking costs on a partial indemnity basis of $51,474.50, including disbursements. The plaintiffs note that this amount is consistent with, if not modest, when compared to other costs awards in similar motions. The issues were somewhat complex, factually and legally, and the plaintiffs also note that the defendant resisted production of information that ought to have been disclosed regarding its relationship with entities in Thailand.

[3] The defendant does not contest that the plaintiffs are entitled to costs but takes issue with the amount sought. It submits that the hourly rates are high, that the plaintiffs are claiming costs for time spent on what the defendant submits were improper or unnecessary steps in the litigation, and that some of the time spent is properly attributable to the litigation broadly speaking, and not the motion. While the defendant has not put a specific number forward as to an appropriate award, its submission suggests costs should be, at most, $20,000, and perhaps considerably less than that.

[4] Section 131 of the Courts of Justice Act provides for the general discretion of the Court to fix costs. Rule 57.01 enumerates factors the Court may consider when assessing costs. Ultimately, costs awarded must be fair and reasonable for the unsuccessful party to pay, having regard to all the circumstances, and is not fixed to actual costs incurred by the successful litigant: Boucher v. Public Accountants Counsel for Ontario, 2004 14579 (ON CA), 2004 14579 (Ont. C.A.).

[5] I have considered the factors in Rule 57.01 and these guiding principles in exercising my discretion in fixing costs in this matter.

[6] Costs should, generally, follow the event, and that is conceded here. The plaintiffs shall have their costs. The only issue is quantum, and the need to address the concerns raised by the defendant.

[7] First, I do not find the hourly rates sought by the plaintiffs – of $450/hour for senior counsel (1970 Call) and $225 for junior counsel (2016 Call) – to be unreasonable. While the defendant would have sought lower rates had it been successful, its counsel did not have the seniority of plaintiffs’ senior counsel and much more work was done by defendant’s senior counsel than on the plaintiffs’ side. Further, I note that most of the plaintiffs’ time was spent by junior counsel, who also argued the lengthy motion on May 23 and 24, 2019. Accordingly, I do not propose to adjust the rates.

[8] Second, the defendant argues that there were steps taken by the plaintiffs which caused unnecessary time to be spent by the defendant on the motion. These included a last minute adjournment application that caused duplicative preparation and was unnecessary as the plaintiffs did not pursue a refusals motion, the filing of a supplementary motion record by the plaintiff on the justice system in Thailand that had no value, and scheduling attendances because of the plaintiff insisting that a Master should hear the motion. The defendant also complains that it was put to the trouble of getting an order as the plaintiff would not confirm that it would not note the defendant in default pending the bringing of the motion, and that it also had to spend considerable time correcting factual inaccuracies in the plaintiff’s submissions.

[9] The plaintiffs, not surprisingly, dispute much of this, noting that the motion was adjourned in any event as it was not listed for hearing on the first anticipated return date of April 2, that some judges agreed it should be heard by a Master, and that they also spent time identifying factual inaccuracies. Litigation is not a tea party and this motion was hotly contested. As is often the case, both sides have their grievances with steps and tactical decisions taken by the opposing party. But, barring something egregious, this to be expected in litigation. Fixing costs should not become a detailed post mortem review of each step taken in a proceeding. In this case I have no basis to be more critical of one side over the other, nor do I see conduct by either side that would justify adjusting costs as proposed by the defendant.

[10] As to the defendant’s submission that some work should not be reimbursable because it will have value to the action as a whole, such as reviewing documents and interviewing witnesses, plaintiffs’ counsel has confirmed that the time claimed relates solely to the jurisdiction motion. Indeed, it is worth noting that the defendant’s bill of costs would have sought a very similar amount, $48,819.51, including disbursements and HST.

[11] These types of motions are complex and of critical importance to an action, as they determine whether an action will proceed or not. Having regard to costs in other jurisdiction motions of this kind, the costs sought here are well within the range of comparable awards and are fair and reasonable for the defendant to pay; indeed, the amount is comparable to what the defendant would have sought from the plaintiffs.

[12] Accordingly, the plaintiffs shall be awarded costs for the motion in the total amount of $51,474.50, payable forthwith.

Schabas J.

Date: 2019-07-30