COURT FILE NO.: CV-18-0590-000
DATE: 2020-02-03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Yvan Gauthier
J. Lester, for the Plaintiff
Plaintiff
- and -
John Harold White
M. Cupello, for the Defendant
Defendant
HEARD: In writing at Thunder Bay, Ontario
Mr. Justice D.C. Shaw
Decision On Costs
[1] The defendant, plaintiff by counterclaim, John Harold White, brought a motion for leave to issue a writ of possession under Rule 60.10 with respect to lands and premises at 11348 Highway 11, Longlac, Ontario (“the property”).
[2] In the alternative, Mr. White sought an interim order for the preservation and custody of the property, pursuant to Rule 45.01.
[3] I dismissed both motions.
[4] Costs of the motions were reserved, pending the receipt of written submissions that have now been received and reviewed.
[5] The plaintiff, Yvan Gauthier, submits that as the successful party he should be awarded costs of the motions. Mr. Gauthier seeks costs, on a partial indemnity basis, of $5,202 for fees, plus HST, and disbursements of $667.91, plus HST of $86.82.
[6] Mr. Gauthier also sets out substantial indemnity fees of $7,803, as an alternative.
[7] Under Rule 57.03(1), unless the court is satisfied that a “different order would be more just”, the court shall fix the costs of the motion and order that costs be paid within 30 days.
[8] Mr. White submits that the motions were akin to requests for an interlocutory injunction. Mr. White further submits that while costs are generally awarded to the successful party and made payable within 30 days, costs have been treated differently in motions for interlocutory injunctions.
[9] Mr. White submits that in the circumstances of this case, it would be more just if the court’s discretion were exercised to order that costs be reserved to the trial judge or, in the alternative, that costs be awarded to the successful party at trial (“costs in the cause”).
[10] In any event, Mr. White submits that the hourly rates shown in Mr. Gauthier’s Bill of Costs, for counsel and his law clerk, as well as the number of hours claimed, are excessive.
[11] Counsel for Mr. Gauthier has six years of experience. He claims a partial indemnity rate of $180 per hour for 26.3 hours of time. His law clerk, who is shown to have six months experience, has a partial indemnity rate of $117 per hour for four hours of time.
[12] Approximately eight hours of time docketed by Mr. Gauthier’s counsel were incurred with respect to the cross-examination of Mr. Gauthier, Mr. White and Joyce White, on their respective affidavits filed on the motion.
[13] Mr. White submits that an appropriate partial indemnity rate for Mr. Gauthier’s counsel, given the amount that is in issue, namely, $40,000, should be $150 per hour for 20 hours and that the law clerk’s partial indemnity rate should be $40 per hour.
[14] Mr. White submits that partial indemnity fees of $3,200, plus HST and disbursements, for a total of $4,369.93 would be reasonable.
[15] Mr. White submits that if costs are fixed in that amount, they should be reserved to the trial judge or, in the alternative, be payable in the cause.
Discussion
[16] There is no basis, if costs are fixed on these motions, to award costs on a substantial indemnity basis.
[17] I have concluded that in the circumstances of this case, it is preferable that I determine the quantum of costs rather than leave that issue to the trial judge who would have to familiarize himself or herself with the motion materials, the arguments of counsel and the reasons for my decision.
[18] Costs are not to be determined by a mechanical process of hourly rates multiplied by docketed hours. Costs should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party. Costs should be proportionate to the importance and complexity of the issues, and to the amount involved in the proceedings.
[19] In my view a fair and reasonable amount for partial indemnity costs for these motions is $3,500 for fees, plus HST of $455, and disbursements of $667.91, plus HST thereon of $86.82, for total partial indemnity costs, all inclusive, of $4,709.73.
[20] The question then becomes whether Mr. White, as the unsuccessful party on the motions, should pay those costs, as fixed, within 30 days, pursuant to Rule 57.03(1)(a) or whether it would be more just to make a different order.
[21] Mr. White holds legal title to the property which Mr. Gauthier is occupying. Mr. Gauthier came into possession of the property on the basis that both he and Mr. White anticipated that the sale of the property from Mr. White to Mr. Gauthier would close. Mr. Gauthier alleges that he has paid the purchase price of $40,000 in full, and that he has the receipts to prove it. Mr. White alleges that although Mr. Gauthier paid $40,000, the agreement was that another $40,000 was to be paid. Mr. White alleges that notations on the receipts for the $40,000 in payments, which show a purchase price of $40,000, were not on the receipts when he signed them.
[22] The motions by Mr. White were for possession of the property. The issue of who is entitled to possession will be determined at trial.
[23] In my view, it is just in the particular circumstances of this case that partial indemnity costs of the motion, fixed in the total sum of $4,709.73, be paid to Mr. Gauthier in the cause, meaning that only if Mr. Gauthier, in whose favour the costs award is made, is successful at trial will he then be entitled to the costs as fixed. If he is not successful at trial, he will not be entitled to payment of the costs as fixed.
[24] The subject matter of the motion in this case, namely, right to possession of the property, is the issue to be addressed at trial.
[25] Because Mr. White was unsuccessful on his motion, he should not be entitled to costs of the motion, even if he is later successful at trial.
[26] In this regard, I have taken into consideration Fernicola (In Trust) v. Creview Development Inc., 2009 75 (ON S.C.J.); Visic v. University of Windsor, [2006] O.J. No. 5326 (S.C.J.) and Rogers v. Sudbury (Administrator of Ontario Works) (2001), 57 O.R. (3d) 437 (S.C.J.).
“original signed by”
The Honourable Justice D. C. Shaw
Released: February 3, 2020
COURT FILE NO.: CV-18-0590-000
DATE: 2020-02-03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Yvan Gauthier
Plaintiff
- and -
John Harold White
Defendant
DECISION ON COSTS
Shaw J.
Released: February 3, 2020
/lvp