COURT FILE NO.: CV-18-77995
DATE: 2019/11/04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GOODLIFE FITNESS CENTRES INC.
Applicant
– and –
ANTHONY HICKS
Respondent
Elizabeth M. Traynor, for the Applicant
Self-represented Respondent
HEARD: In Writing
COSTS ENDORSEMENT
Application heard January 2019
corthorn J.
Introduction
[1] Goodlife Fitness Centres Inc. (“Goodlife”) brought an application pursuant to s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43, for (a) an order declaring Anthony Hicks to be a vexatious litigant, and (b) protection for Goodlife and others from any new proceeding by Mr. Hicks that is vexatious and/or without merit. Goodlife was entirely successful on the application: see Goodlife Fitness Centres Inc. v. Hicks, 2019 ONSC 4942 (“the Ruling”).
[2] In the Ruling, I recognized Goodlife’s success on the application and their presumptive entitlement to costs of the proceeding. I also noted that (a) Mr. Hicks has been self-represented in every proceeding that he has pursued, (b) it is unlikely that he has the financial resources with which to pay costs, if awarded against him, and (c) Mr. Hicks’ impecuniosity is not the driving factor in deciding the issue of costs.
[3] It was made clear to Mr. Hicks that he is not entitled to his costs of the application. It was left open to Goodlife to decide whether to request that it be awarded costs of the application. If it chose to do so, Goodlife had the option of attempting to deal with Mr. Hicks to resolve the issue of costs or to simply file written submissions. Whether or not Goodlife attempted to deal with Mr. Hicks directly is unknown.
[4] In any event, Goodlife filed written submissions with respect to costs by the deadline set for same. The deadline for Mr. Hicks to deliver responding materials has passed. No responding materials were delivered to the court by Mr. Hicks.
Costs Claimed
[5] Goodlife seeks its costs of the application on a partial indemnity basis in the amount of $5,832.18. That amount includes fees of $4,239.30 and HST thereon of $551.11. The fees claimed are based on 65 per cent of the fees incurred by Goodlife on a full indemnity basis.
[6] There appears to be an error in the amount of the disbursements claimed on a partial indemnity basis. The total of the disbursements incurred is $1,484.27. That amount includes HST where applicable. In the bill of costs provided, the amount claimed for disbursements as part of costs on the partial indemnity scale is equivalent to 65 per cent of the actual disbursements incurred.
[7] I am not aware of a practice or case law that calls for disbursements to be adjusted downwards, from the full amount incurred, for the purpose of costs claimed on either the substantial or partial indemnity scales. By my arithmetic, the costs claimed on the partial indemnity scale total $6,274.68 (i.e., including the full amount for disbursements and applicable HST).
Disposition
[8] For the reasons that follow, Goodlife is entitled to its costs of the application on the partial indemnity scale in the amount of $4,785.00.
Analysis
a) Fees
[9] I find that the work was done efficiently and the time docketed for this matter is reasonable and more than proportionate to the importance of the matter to Goodlife.
[10] The rates for senior counsel are reasonable. Senior counsel’s full indemnity rates of $425 and $440 give rise to partial indemnity rates of $276.25 (work done prior to the hearing) and $286.00 (preparation for and attendance at the hearing).
[11] I find, however, that the full indemnity rates for junior counsel ($180 and $200) and the law clerk ($140 and $175) are high. Those rates are high taking into account the very limited experience of junior counsel and the geographic location in which this application was heard. The full indemnity rates identified may be reasonable in the Greater Toronto Area or other regions of Ontario. Those rates are not in keeping with rates in Ottawa or the East Region.
[12] For junior counsel a full indemnity rate throughout of $150 is reasonable and for the law clerk, $100. The relevant partial indemnity rates become $97.50 and $65.00, respectively. Those rates remain for the years 2018 and 2019.
[13] Applying the partial indemnity rates claimed for senior counsel and the partial indemnity rates for junior counsel and the law clerk set out immediately above, the fees on the partial indemnity scale are $3,570.00 (relying on a rounded figure). The applicable HST is $464.10.
b) Disbursements
[14] The disbursements claimed include $1,118.82 in taxable items, $220 in non-taxable items, and applicable HST of $145.45.
[15] The taxable items include $728.25 for photocopies charged at $0.25 per page. That equates to over 2,900 pages of photocopying. That amount of photocopying is high taking into consideration the size of the application record in this matter.
[16] The taxable items also include $335.00 for the process server’s fees. Once again, that amount appears high based on the documents served for the purpose of the application. It may be that the process server’s fees take into consideration that the documents served had to be sent to Ottawa from Toronto (where the applicant’s counsel is located).
[17] A party is entitled to be represented by counsel of the party’s choosing. If, however, a party chooses to be represented by counsel located outside the city or town in which the proceeding is commenced, the expenses incurred for ‘out-of-town’ counsel are to be borne by the party. Those expenses are not to be imposed on the opposing party.
[18] For those reasons, I reduce the full indemnity disbursements from the total claimed from $1,484.27 to $750.00. Disbursements for the purpose of costs on the partial indemnity scale are awarded at $750.00, inclusive of applicable HST.
Summary
[19] The respondent shall pay the applicant its costs of the application on the partial indemnity scale in the amount of $4,785.00. That amount is broken down as follows:
Fees $ 3,570.00
HST on fees $ 487.50
Disbursements $ 750.00
Total $ 4,784.10
Rounded to $ 4,785.00
[20] Costs of the application are payable forthwith.
Madam Justice Sylvia Corthorn
Released: November 4, 2019
COURT FILE NO.: CV-18-77995
DATE: 2019/11/04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GOODLIFE FITNESS CENTRES INC.
Applicant
– and –
ANTHONY HICKS
Respondent
COSTS ENDORSEMENT
Application Heard January 4, 2019
Madam Justice Sylvia Corthorn
Released: November 4, 2019