COURT FILE NO.: CV-16-561277
DATE: 20190807
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BOBBIE MANN
Plaintiff
– and –
MARCUS CHAC-WAI and YOLANDA JANISZEKWI and MIMAR HOLDINGS CORPORATION
Defendants
Gwendolyn L. Adrian, for the Plaintiff
Rolf M. Piehler, for the Defendants
HEARD: In writing
M. D. FAIETA J.
REASONS FOR DECISION ON COSTS
INTRODUCTION
[1] For reasons dated June 27, 2019, I dismissed a motion by the defendants for summary judgment which asked that this action be dismissed as against it. See Mann v. Chac-Wai et al., 2019 ONSC 3965.
[2] The plaintiff submitted an Outline of Costs which shows actual costs of $33,752.50 in fees, plus an additional $1,200 in fees for appearance at the motion and $2,566.77 in disbursements.
[3] The Plaintiff seeks her substantial indemnity costs of $38,152.77 comprised of fees of $35,586.30 and disbursements of $2,566.77, inclusive of HST. Such claim makes little sense on a substantial indemnity basis when the plaintiff’s cost at the actual rate are slightly lower. The defendants submit that the Plaintiffs should be partial indemnity costs of $12,430.00 comprised of fees of $9,500.00 and disbursements of $1,500, plus HST.
[4] For reasons described below, I order that the defendants pay costs of $29,000.00 to the plaintiff within 30 days.
ANALYSIS
[5] The fixing of costs is governed by s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Rule 57.01 is the primary rule governing costs. It enumerates various factors to consider when exercising discretion to award costs. Also relevant is Rule 1.04(1.1), which provides that “[i]n applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.”
[6] The ultimate question is whether an award of costs reflects “an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant”: Boucher v. Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), para. 26.
[7] I now turn to the various relevant considerations in assessing costs in this matter.
Principle of Indemnity & Reasonableness of Claim
[8] The plaintiff claims 98.3 hours:
• Micheal Simaan – 1999 Year of Call – $489/hr actual rate - 2.5 hours;
• Gwendolyn L. Adrian – 2007 Year of Call - $350/hr actual rate – 87.8 hours
• Michaela Chen – 2018 Year of Call - $225/hr actual rate – 8 hours
[9] The defendants dispute the $489 hourly rate claimed by Mr. Simaan. Mr. Piehler states that he is a 1991 Year of Call whose actual rate is $425. He states that given that he has greater experience than Mr. Simaan and that his hourly rate should be reduced to match Mr. Piehler’s rate. In my view, Mr. Simaan’s hourly rate is reasonable for a commercial and litigation lawyer with his years of experience. In any event, the dispute regarding his hourly rate makes little difference since he only charged 2.5 hours.
[10] Mr. Piehler submitted an Outline of Costs which shows that he spent about 1/3 of the amount of time that the defendants spent (33 hours vs 98 hours). The defendants submit that the amount of time spent by counsel for the plaintiff is excessive given that Ms. Adrian is a 2007 Year of Call.
[11] The defendants also submit that some of the materials were re-used from previous motions and that the cross-examinations had “significant cross-over” with examinations for discovery. There is no support for these bald assertions.
[12] The plaintiff submits that it was obliged to “lead trump or risk losing”. The defendants took the position that there was no genuine issue requiring a trial and thus the plaintiff, keeping in mind that it had to “lead trump or risk losing”, placed a more fulsome record before the court to counter the defendants’ position. This response explains the plaintiff’s greater fees and photocopying costs. Given that the dismissal of the plaintiff’s $1 million action was at stake, I do not think that it fairly rests with the defendants to question whether the plaintiff spent more time than needed to respond to the defendants’ motion. The views expressed by former Chief Justice Winkler in Risorto v. State Farm Mutual Automobile Insurance Co. (2003), 2003 CanLII 43566 (ON SC), 64 O.R. (3d) 135, para. 9, are applicable:
… courts have repeatedly stated that the role of the court on a costs disposition is not to second-guess successful counsel on the amount of time spent on the case or the allocation of counsel to the tasks at hand. (See Tri-S Investments Ltd. v. Vong, [1991] O.J. No. 2292 (Quicklaw) (Gen. Div.); Lawyers' Professional Indemnity Co. v. Geto Investments Ltd., [2002] O.J. No. 921 (Quicklaw), 17 C.P.C. (5th) 334 (S.C.J.).) This was a hard-fought motion which, if the defendant were successful would have terminated the proceeding short of a trial. Its importance cannot be discounted after the fact.
The Complexity of the Proceeding
[13] The motion for summary judgment was complex given the disputed, lengthy factual matrix.
The Importance of the Issues
[14] The issues were of importance to both parties. The plaintiff is destitute and it is crucial to her that her claim be properly advanced.
Should Substantial Indemnity Costs be Ordered?
[15] There are two grounds on which I find that it is just to award substantial indemnity costs.
Rule 49
[16] The plaintiff delivered an offer to settle by email dated December 28, 2018 which stated:
In light of the Court of Appeal’s recent decision of Mason v. Perras Mongenais, 2018 ONCA 978, which supports our position that your clients’ motion for summary judgment is likely to be dismissed, our client offers to settle the motion on the following terms, which are made pursuant to Rule 49 of the Rules of Civil Procedure:
Your clients will pay to our client half of her partial indemnity costs which are associated with the motion if accepted before 5 pm on January 3, 2018;
Your client will pay to our client her partial indemnity costs which are associated with the motion if accepted between 5:01 pm on January 3, 2018 and one minute after the commencement of the hearing of the motion.
This offer is open until withdrawn or until one minute after the commencement of the hearing of the motion.
[17] I note that the above offer contains a typographical error as the reference to 2018 in numbered paragraphs 1 and 2 should read 2019. This error was not noted by the defendants.
[18] The plaintiff has not explained how Rule 49, and in particular Rule 49.10, would apply in these circumstances and I decline to do so.
Rule 20.06
[19] Rule 20.06 states:
The court may fix and order payment of the costs of a motion for summary judgment by a party on a substantial indemnity basis if,
(a) the party acted unreasonably by making or responding to the motion; or
(b) the party acted in bad faith for the purpose of delay.
[20] The defendants submit that they did not act unreasonably in bringing the motion for summary judgment as they “reasonably believed that any issues of credibility could be determined by way of affidavit and/or by the court’s powers pursuant to Rule 20.4(2.1).” Asking a court to confidently make findings of facts based on competing affidavits where credibility was at issue with few supporting documents (whose reliability was also in dispute) was not the only obstacle that the defendants faced on this motion. The motion for summary judgment was a motion for partial summary judgment as the defendants’ counterclaim would have remained outstanding and preceded to trial in any event. The legal risk was noted in the plaintiff’s letter dated December 28, 2018. I find that the defendants acted unreasonably in bringing this motion for partial summary judgment as it had no reasonable chance of success for the reasons that I provided above and in my earlier decision.
CONCLUSIONS
[26] I find that it is fair and reasonable for the defendants to pay costs of $29,000.00, inclusive of HST and disbursements, to the plaintiff in respect of the motion for summary judgment within 30 days.
Mr. Justice M. D. Faieta
Released: August 7, 2019
COURT FILE NO.: CV-17-569858
DATE: 20190807
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MOLLY GALLO, a minor by her Litigation Guardian FRANCESCO GALLO and FRANCESCO GALLO
Plaintiffs
– and –
BRAMALEA CITY CENTRE EQUITIES INC., MORGUARD CORPORATION, SCHINDLER ELEVATOR CORPORATION, FUJITEC CANADA INC. and TECHNICAL STANDARDS AND SAFETY AUTHORITY
Defendants
REASONS FOR DECISION ON COSTS
Mr. Justice M. D. Faieta
Released: August 7, 2019