COURT FILE NO.: CV-18-0179-000
DATE: 2019-11-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Willem Dingemanse/Marylin Dingemanse
Self-Represented
Plaintiffs
- and -
Hydro One Networks
Monica Caceres, counsel for the Defendant
Defendant
HEARD: In Writing at Thunder Bay, Ontario
Madam Justice T. J. Nieckarz
Decision On Costs
Introduction:
[1] This decision on costs relates to the motion of the Defendant, Hydro One Networks Inc. (“Hydro One”) to strike the Plaintiffs’ pleading. That motion was heard on May 28, 2019.
[2] The Plaintiffs also had a motion before the court for an extension of time for issuing and serving their Amended Amended Statement of Claim. The extension request was not opposed by Hydro One. Hydro One’s concern was that the amended pleading was not in compliance with Rules 25 and 26 of the Rules of Civil Procedure or with the law related to pleadings.
[3] For reasons delivered in Dingemanse v. Hydro One Networks Inc., 2019 ONSC 5055, I granted the Defendant’s motion. To summarize, I found as follows:
(a) The Plaintiffs’ Amended Statement of Claim that had been issued, and the Amended Amended Statement of Claim that they sought permission to file and have issued, continued to plead evidence as opposed to material facts, contained argument, relied largely upon allegations of breaches of statutes without establishing an independent cause of action, failed to clearly set out the material facts on which their claims for negligence and breach of contract were based, and contained irrelevancies and numerous scandalous and inflammatory statements, many of which were hearsay; and
(b) That the Plaintiffs’ pleadings were extremely problematic as drafted and could not be rectified by mere amendments.
[4] As part of my decision I invited submissions as to costs. The Defendant seeks costs of its motion, fixed in the amount of $3,172.48 on account of fees and $955.16 on account of disbursements, for a total of $4,127.64 (inclusive of H.S.T.).
[5] The Plaintiffs did not file any response to the Defendant’s costs submissions.
[6] The Defendant was clearly the successful party. The question to be determined is whether the amount claimed is reasonable.
The Law:
[7] An award of costs is in the discretion of the court by virtue of s. 131(1) of the Courts of Justice Act.
[8] The discretion of the court is to be exercised in light of the facts and circumstances of the case in relation to the factors provided for in Rule 57.01(1).
[9] In addition to the outcome and any offers to settle that were made, Rule 57.01(1) provides for consideration of the following factors:
57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and
(i) any other matter relevant to the question of costs.
[10] A costs award must be fair and reasonable. It should not merely be a calculation of the hours spent, but also reflect the reasonable expectations of the parties. An award of costs should seek to balance the indemnity principle with the fundamental objective of access to justice: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) at paras. 37-38; Andersen v. St. Jude Medical Inc., 2006 CanLII 85158 (ONSC Div. Court) at para. 22.
[11] Unless the court is satisfied that a different order would be more just, Rule 57.03 directs that the court shall fix the costs of a motion and order them to be paid within 30 days.
Analysis:
[12] The Defendant claims a partial indemnity rate of $225.00 per hour for Ms. Caceres, a lawyer with 15 years’ experience. Ms. Caceres claims a total of 10.5 hours for all items related to the motion (including preparation of the notice of motion, drafting of the affidavits, research, drafting the factum, preparation for and attendance at the motion and preparation of costs submissions. A total of 8 hours at $40 per hour is claimed for law student time, and another 2.5 hours for administrative time at $50 per hour.
[13] Given the materials filed and the length of the motion itself, the rates and the amount of time claimed with respect to the motion are all reasonable. Fees are allowed in the amount of $3,172.48.
[14] The Defendant also claims $955.16, inclusive of H.S.T. on account of taxable disbursements. This amount includes a flight cost of $331.42, which I find to be a reasonable cost for roundtrip airfare from Toronto to Thunder Bay. The disbursements claimed are reasonable.
[15] The Plaintiffs are hereby ordered to pay to the Defendant the total sum of $4,127.64 within 30 days of the date of these Reasons.
“Original signed by” The Honourable Madam Justice T.J. Nieckarz
Released: November 4, 2019
COURT FILE NO.: CV-18-0179-000
DATE: 2019-11-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Willem Dingemanse/Marylin Dingemanse
Plaintiffs
- and -
Hydro One Networks
Defendant
DECISION ON COSTS
Nieckarz J.
Released: November 4, 2019
/lvp