Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
B E T W E E N:
BYRON HENRY, Plaintiff
- and -
TORONTO TRANSIT COMMISSION and GIOVANNI CAMARRA, Defendants
BEFORE: G. Dow, J.
HEARD: February 4, 2019
COUNSEL: Fawad Siddiqui, for the Plaintiff John Rosolak and Natalie Groen, for the Defendants
ENDORSEMENT
[1]
Background
On August 25, 2011, the plaintiff was injured while attempting to board the defendant, Toronto Transit Commission’s bus at the Downsview Subway Station, now Sheppard West. The defendant, Giovanni (“Ron”) Camarra was the bus operator.
2This matter proceeded to trial with a jury commencing January 28, 2019 and heard evidence on January 28, 29, 30, 31, 2019. I provided counsel with a copy of my draft charge and heard submissions on February 4, 2019. Counsel addressed the jury and I charged them on February 5, 2019 with the jury rendering its verdict at the end of the day.
3The jury found the damages, (agreed upon between the parties at $25,000.00 plus pre-judgment interest pursuant to the Courts of Justice Act and costs pursuant to the Order of this Court) were not the result of any negligence on the part of the defendants. The jury found that the plaintiff’s damages were the result of the plaintiff’s own negligence in that he “failed to exercise reasonable care and assumed risk by:
making an explicit decision that he would run to catch the bus rather than wait for another;
running and not breaking stride such that he was unable to stop and board the bus in a prudent manner; and
failing to anticipate the doors would close.”
4Following the return of the jury verdict, the defendants made a motion for dismissal of the action in accordance with the jury verdict. Plaintiff’s counsel did not oppose the motion. I agree the action should be dismissed.
[5]
Costs
The defendants sought partial indemnity costs and tendered a draft Bill of Costs claiming $87,475.00 in fees plus HST and disbursements of $7,174.74. The total claim was $106,021.49.
6The quantum of the disbursements was not disputed by plaintiff’s counsel.
7The defendants’ Bill of Costs estimated 238 hours were incurred by trial counsel. Trial counsel sought an hourly rate of $325.00 per hour and has practiced for more than 30 years. An additional 45 hours was sought for associate counsel representing the time incurred attending at the trial. The hourly rate sought for associate counsel was $225.00 per hour. Plaintiff’s counsel did not dispute the hourly rates proposed but disputed, as excessive, the estimated amount of time. Counsel for the defendants acknowledged no actual time dockets were kept given counsel are part of an in-house legal department.
8Counsel for the plaintiff relied on his own draft Bill of Costs in which he recorded his time which appears to include that of himself at $350 per hour and a variety of other individuals at $125.00 per hour. By my calculation, this comprised 24.2 of the 132.7 hours docketed. Plaintiff’s counsel specifically disputed as excessive, the time estimated for each described area of the work performed by counsel for the defendants. Plaintiff’s counsel submitted the time expended ought not to have exceeded 107 hours by trial counsel plus an additional 35 hours for the attendance of associate counsel at trial.
9I agree the amount of time estimated by counsel for the defendants is excessive. However, I also have difficulty in assessing in the amount of time being as little as proposed by plaintiff’s counsel. I am mindful of the defendants’ complete success in this action and have reviewed the factors to be considered in the exercise of my discretion under Rule 57.01. I noted Rule 57.01(1)(b) includes consideration for “the apportionment of liability”.
10Counsel for the defendants also raised how important the liability issue was to his employer which would fall under Rule 57.01(1)(d).
11While not raised by counsel, I am also mindful of the comment the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 and the direction in paragraph 26 “to fix 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.” To that end, I have concluded that 160 hours is an appropriate amount of time to have incurred by trial counsel. Further, the 45 hours claimed for attendance at trial is an appropriate amount of time for associate counsel to have attended the trial and assisted trial counsel.
12I was not advised of any reason that the defendants, as the successful party, should not be awarded costs. I was advised by counsel that there were no Rule 49 offers to consider. Similarly, I was not advised of any reason or a basis to increase the level of costs beyond the partial indemnity.
13I did raise with counsel that the amount in dispute which they agreed upon was the upper limit of the Small Claims Court jurisdiction (O.Reg. 626/00). Both counsel submitted they were not seeking to have the matter determined in the “summary way” as provided for in Smalls Claims Court under Section 25 of the Courts of Justice Act, R.S.O. 1990, c.C. 43. I also reviewed Rule 57.05 dealing with the monetary jurisdiction of Small Claims Court and note it provides for where “a plaintiff recovers an amount within monetary jurisdiction of the Small Claims Court”. That is, it is not applicable to the situation at hand and it would be inappropriate to apply or rely on this Rule to deny the defendants their costs at the Superior Court of Justice level.
14Again, while not raised by counsel, I am mindful of the comments in First Capital (Canholdings) Corporation v. North American Property Group, 2012 ONSC 1359 which addressed the effect of inflation on the hourly rate guidelines previously in use from 2005. In that decision counsel called to the bar in 2002 and 2007 were awarded $335 and $200 per hour on a partial indemnity basis. Further, I have reviewed the comments of the Court of Appeal in Cobb v. Long Estate 2017 ONCA 717 with regard to awarding costs and note, at paragraph 157, to paraphrase, that any costs award must reflect the reality of the final result.
15In addressing what reduction should be made, if any, from the hourly rates attributed to counsel for the defendants, the use of $325.00 per hour as a substantial indemnity rate for counsel with more than 30 years’ experience is, inordinately low. Similarly, a substantial indemnity hourly rate for associate counsel of $225.00 is also low. I make this observation based on substantial indemnity hourly rates I have encountered currently being sought and awarded by senior counsel in civil matters and particularly in personal injury actions in the range of $750 to $800 per hour. By comparison, plaintiff’s counsel, a 2008 call to the bar, used $350 as his substantial indemnity rate. To that end, in exercising my discretion under Section 131 of the Courts of Justice Act, supra., I would reduce the hourly rate for trial counsel on a partial indemnity basis to $275.00 per hour and the rate for associate counsel to $190.00 per hour.
16The result for counsel fees are as follows:
Counsel fee - for trial counsel at $275.00 per hour at for 160 hours (on a partial indemnity basis)
$44,000.00
Associate Counsel - $190.00 per hour for 45 hours (on a partial indemnity basis)
Subtotal
$8,550.00
$52,550.00
HST on Fees
Disbursements
$6,831.50
$7,174.74
TOTAL
$66,556.24
[17]
Conclusion
To summarize, the action is dismissed with costs payable by the plaintiff to the defendants fixed in the amount of $66,556.24, and payable forthwith.
Mr. Justice G.Dow
Released: February 20, 2019