COURT FILE NO.: CV-15-328-00
DATE: 20191016
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LESLIE SOSNOWSKI and THERESA SOSNOWSKI
Plaintiffs
– and –
MacEWEN PETROLEUM INC. and RICHARD JOSEPH PAUL BOURDEAU
Defendants
Gustavo F. Camelino, for the Plaintiffs / Responding Parties
Porter Heffernan and Joel Rocque, for the Defendant / Moving Party, MacEwen Petroleum Inc.
Defendant Richard Bourdeau not appearing on this motion
HEARD: in writing
MacLeod-Beliveau J.
DECISION ON COSTS
[1] The defendant MacEwen Petroleum Inc. (hereinafter “MacEwen”) seeks its costs of the contested one-half day motion for summary judgment heard before me on March 21, 2019, from the plaintiffs, Leslie Sosnowski and Theresa Sosnowski (hereinafter “the plaintiffs”). In my decision released April 11, 2019, reported as Sosnowski v. MacEwen Petroleum Inc., 2019 ONSC 1860, the defendant MacEwen was successful in obtaining summary judgment against the plaintiffs and having the plaintiffs’ action dismissed in its entirety as I found that their claim was statute-barred by operation of the Limitations Act, 2002. Costs were reserved. The costs submissions were to be for the summary judgment motion as well as the costs of the action. Submissions on costs were to be received from the parties on or before May 31, 2019.
[2] On May 31, 2019 I received MacEwen’s costs submissions. On June 3, 2019 I received the plaintiffs’ reply costs submissions. In light of the plaintiffs’ submissions, I required additional information from MacEwen as to their submissions on costs as to the matters before me and the matters on a production motion that were included, as well as a breakdown of the disbursements claimed, to be received by June 17, 2019. Plaintiffs’ counsel had until June 21, 2019 to reply which date was ultimately extended to July 4, 2019. MacEwen filed a revised costs outline removing items claimed in the motion for production which was heard by another judge and not appropriate for consideration by me. A detailed breakdown of MacEwen’s disbursements was also received.
[3] In their revised Costs Outline of June 17, 2019, MacEwen seeks fees of $27,528.00 plus $1,050.00 for appearance on the motion for total fees of $28,578.00; plus HST on fees @ 13% of $3,715.14; for a total fee claim of $32,293.14.
[4] MacEwen claims taxable disbursements of $4,302.42; plus HST of $559.31; non-taxable disbursements of $537.00; for a total disbursement claim of $5,398.73.
[5] MacEwen’s total costs claimed for the motion for summary judgment and the action are $37,691.87. MacEwen claims additional fees for preparation of its cost submissions of $1,000.00 plus HST.
[6] The plaintiffs submit that the MacEwen’s costs should be $6,752.88 for the fees of the motion for summary judgment inclusive of HST, plus $11,797.20 inclusive of HST for the fees of the action; for a total fees claim of $18,550.08; plus reasonable disbursements of $4,025.59; for a total costs award to MacEwen of $22,575.67.
[7] No-one disputes that costs are discretionary and should follow the event and should be fixed by the court. The parties disagree as to the amount of costs to be awarded in all the circumstances for the costs of the motion for summary judgment and for the costs of the action.
[8] I have carefully considered all of counsels’ respective submissions. I have considered section 131(1) of the Courts of Justice Act. I have carefully considered the various relevant factors set out in Rule 57.01 (1) applicable to an award of costs. Generally, costs follow the event. The court’s objective in fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in this proceeding, rather than to fully indemnify the successful party for its actual costs incurred in defending the matter. I am mindful of the factual reality for Mr. Sosnowski, that in spite of the reason, that he has lost his job.
[9] This motion took approximately one-half day to ague (11:00 a.m. until 3:30 p.m. – 3.5 hours) based upon both counsels’ thoroughly prepared and excellent materials, their respective factums, and their case law briefs filed. The issues at stake, I find, were factually moderately complex, but legally they were extremely complicated. In some respects, the issues raised were novel to the law of Limitations Act defences.
[10] The importance of the issues at stake to the parties was critical. This case was not one of those cases capable of easy resolution given the claims made and the defences pleaded. The central issue on the motion for summary judgment was an issue of law on the impact of concurrent criminal charges on the running of a limitations period in matters involving civil actions, as opposed to public or state actors. MacEwen raised issues of importance to the public and MacEwen was entirely successful.
[11] The action was commenced on July 24, 2015. Examinations for discovery of all parties were held on November 10, 13, and 14, 2017. Not much happened after that until MacEwen brought its motion for production from a third party heard on September 21, 2018 by Johnston, J. The defendant Bourdeau also brought a motion for summary judgment heard by Abrams, J. The costs of those two respective motions are not before me in this matter.
[12] Generally, I find, that the time spent by the parties on the motion for summary judgment and the action to date was proper and necessary and that the hourly rates claimed were reasonable. The costs claimed are on a partial indemnity basis which is appropriate. The plaintiffs, I find, acted reasonably. There were however significantly higher fees incurred by MacEwen who chose to have both a senior lawyer and a junior lawyer working on this matter creating a distinctly higher amount of time spent and costs incurred than, I find, a losing party would reasonably expect to pay. I have reduced the total amount awarded for fees for this reason and, in addition to be in accordance with the general overriding principal of proportionality in the awarding of costs. I assess MacEwen’s fees portion of the costs award at $25,000.00 plus HST of $3,250.00 for a total amount of $28,250.00.
[13] The plaintiffs do not take issue with MacEwen’s mandatory disbursements in the amount of $2,877.91. The plaintiffs take issue with the discretionary disbursements claimed in the amount of $2,520.87. The plaintiffs’ position is that two discretionary disbursements claimed for computer research of $293.26 plus HST and a hotel in Kingston claimed of $169.63 plus HST are unreasonable. The plaintiffs also seek an additional reduction inclusive of HST of $782.26 for excess charges above normal rates for process service, faxes, long distance and conference calls, and mileage at the rate of 56 cents per kilometre as being unreasonable.
[14] I agree with the plaintiffs’ submission that the computer charge cannot be reasonably visited on the losing party. MacEwen’s disbursements are reduced by $293.26 plus HST of $38.12 for a total of $331.38. I find that it is reasonable, however, for MacEwen’s lawyer to have stayed in a hotel the night before the court attendance as opposed to driving that morning from Ottawa for a hearing in Kingston that same day. Simply put, the hotel was a wise and safer decision and was reasonable and is allowed. I reduce the process server fees, faxes, long-distance calls, and mileage of $1,174.26 by $500.00 plus HST of $15.00 for a total of $515.00 to reflect a more reasonable claim for these items. In summary, MacEwen’s disbursements are reduced by $331.38 plus $515.00 for a total reduction of $846.38. MacEwen’s disbursements are therefore assessed and allowed at $5,398.73 less $846.38 for a net amount of $4,552.35.
[15] In the exercise of my discretion, I therefore award MacEwen the sum of $28,250.00 plus $4,552.35 for disbursements for a total cost award of $32,802.35 for the motion for summary judgment and the costs of the action. Should it be required, I apportion these costs at 40% or $13,120.94 for the motion for summary judgment, and 60% or $19,681.41 for the costs of the action.
[16] I find that this total award of costs is fair and reasonable. This sum can be expected to be paid by a losing party after a successful motion for summary judgment and the ensuing costs of the action to date as a combined total.
[17] I find it is reasonable that these costs be payable within 60 days.
[18] An order shall issue that the plaintiffs shall pay to the defendant MacEwen Petroleum Inc. its fixed costs in the amount of $32,802.35 payable within 60 days.
Honourable Madam Justice Helen MacLeod-Beliveau
Released: October 16, 2019
COURT FILE NO.: CV-15-328-00
DATE: 2019 OCTOBER 16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LESLIE SOSNOWSKI and THERESA SOSNOWSKI
Plaintiffs
– and –
MacEWEN PETROLEUM INC. and RICHARD JOSEPH PAUL BOURDEAU
Defendants
DECISION ON COSTS
MacLeod-Beliveau, J.
Released: October 16, 2019