1371787 Ontario Inc., 2019 ONSC 5715
COURT FILE NO.: CV-16-3291-SR DATE: 20191002
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Pentalift Equipment Corporation, Plaintiff AND: 1371787 Ontario Inc. o/a Pro-Door & Docksystems, Defendants
BEFORE: Tzimas J.
COUNSEL: Anna M. Esposito and Neeta Sandhu, Counsel, for the Plaintiff Brandon O’Riordan, Counsel, for the Defendants
HEARD: In writing
SUPPLEMENTARY ENDORSEMENT TO THE JUDGMENT OF AUGUST 16, 2019, REGARDING COSTS
INTRODUCTION
[1] My judgment in this matter was released on August 16, 2019. In that decision I fixed costs at $38,000.00, inclusive of costs, disbursements and applicable taxes. I understood the plaintiff’s partial indemnity costs claim to be $44,000. The reasons for my reduction related to time spent on the file, concerns with duplication of effort and proportionality between the issues in dispute, the quantum at stake and the costs of the litigation.
[2] Following the release of my judgment, counsel for the plaintiff wrote to the court and sought to remind me of the plaintiff’s offer to settle. She asked if I would reconsider my costs award in light of the offer. Indeed, counsel had provided a copy of the offer in a sealed envelope at the conclusion of trial and left it with my Registrar. Unfortunately, that sealed envelope did not make it to my office. Accordingly, my cost award did not take into account the plaintiff’s attempt to settle the dispute in advance of trial, and the implications of a Rule 49 Offer. It is therefore appropriate to revisit my original award.
[3] I have now reviewed the plaintiff’s Offer to Settle of June 5, 2017. It is evident that the plaintiff sought to protect its costs long before any substantial costs were incurred.
[4] For any costs award, Rule 57 of the Rules of Civil Procedure, outlines the various considerations that go into the awarding of costs. These include the applicable scale, the principle of indemnity, the lawyer’s experience, the rates charged, the hours spent, the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding, the amount claimed and the amount recovered, the complexity of the proceeding, the conduct of the parties that tended to shorten or lengthen the proceeding, whether steps in the proceeding were necessary or not, and whether a party refused or denied to make appropriate admissions.
[5] Rule 49 of the Rules of Civil Procedure is designed to encourage parties to consider their settlement options and to avoid the costs of a trial. The outcome of a case, relative to the timing of an Offer to Settle and the content of that offer will impact the applicable costs scale, which may range from partial indemnity, substantial indemnity, or full indemnity.
[6] In this case the plaintiff’s Offer to Settle was very reasonable and was advanced early in the litigation. Had it been accepted both parties would have had very substantial savings. The defendant chose not to accept the offer. The plaintiff was more successful at trial than the offer it advanced. Accordingly, based on Rule 49, the plaintiff is entitled to costs on a partial indemnity scale up until the date of the offer and on a substantial indemnity basis for the costs incurred following the offer of June 5, 2017.
[7] As to quantum, as I understand the plaintiff’s Bill of Costs, “Total Fees and Disbursements and Taxes” on a partial indemnity basis until June 5, 2017, the date of the offer came to $12,199.09. After June 5, 2017, “Total Fees and Disbursements and Taxes” on a substantial indemnity basis came to $56,734.80. Given the plaintiff’s Rule 49 Offer, the plaintiff’s total costs claim against the defendant came to $68,933.89.
[8] The concerns I raised in my original award, which led me to reduce the plaintiff’s total claim of $44,000 on a partial indemnity basis to $38,000, stand. For ease of reference, those concerns related to the time spent on the various issues, some duplication of effort, the necessity to address some of the issues, particularly as those related to the Sale of Goods arguments, and the proportionality between the nature of the issues in dispute and time spent addressing them. The plaintiffs should have also challenged the expert’s qualifications right from the outset, as a more critical view of the defense expert’s lack of qualifications, may have reduced the trial time.
[9] I recognize that Ms. Sandhu’s modest billing rate implicitly took into account the level of her experience and likely the need to spend more time on trial preparation and the consideration of legal issues than might otherwise be required. However, given that there was also senior counsel on the file, some more nimble trial management would have helped.
[10] Having said the above, while I recognize that the counterclaim advanced by the defendant was ambitious and resulted in far more work on the file than was necessary, the costs of approximately $68,000 remain high. I find it appropriate to reduce the costs award to $58,000. This reduction is roughly analogous to the reduction I applied in my original ruling.
[11] The costs award of $58,000 is therefore payable 40 days from the date of this order.
Tzimas J.
Date: October 2, 2019
1371787 Ontario Inc., 2019 ONSC 5715
COURT FILE NO.: CV-16-3291-SR DATE: 20191002
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Pentalift Equipment Corporation Plaintiff
- and - 1371787 Ontario Inc. o/a Pro-Door & Docksystems Defendants
BEFORE: TZIMAS J.
COUNSEL: Anna M. Esposito and Neeta Sandhu, for the Plaintiffs Brandon O’Riordan, for the Defendants
ENDORSEMENT
Tzimas J.
Date: October 2, 2019