Court File and Parties
COURT FILE NO.: CV-15-66579 DATE: 2021/05/06 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: John Bennett, Plaintiff AND Sandra Swift, Kemp Waterman, Toni Tegano, and the CIBC, Defendants
BEFORE: Ryan Bell J.
COUNSEL: Timothy Sullivan, for the Plaintiff Bryan Delaney, for the Defendants Sandra Swift, Kemp Waterman, and Toni Tegano
HEARD: In writing
Costs Endorsement
[1] This is my decision on costs of Mr. Bennett’s motion seeking an order extending the time by which the action is to be set down for trial and an order finding the Swift defendants in contempt. At the conclusion of the hearing, and on the consent of all parties, I ordered the time for setting the action down for trial be extended to February 28, 2022.
[2] In my endorsement released on April 9, 2021 (Bennett v. Swift, 2021 ONSC 2585), I dismissed Mr. Bennett’s contempt motion. Costs of the motion were not requested as against the CIBC. Mr. Bennett and the Swift defendants have been unable to agree on costs of the motion and have provided me with written submissions.
[3] The Swift defendants seek an award of costs, “close to substantial indemnity” in the amount of $18,000. In the alternative, they request their costs on a partial indemnity basis, in the amount of $12,909.12.
[4] Mr. Bennett’s position is that each side should bear their own costs. He says the motion was necessary because the Swift defendants did not agree to the extension of time until the attendance at the hearing, and there was “no other way” to compel production from the Swift defendants. In the alternative, Mr. Bennett requests an order that costs be in the cause and fixed by the trial judge or, that costs be in any event of the cause, fixed at $950.
[5] I do not agree that each side should bear their own costs. My order extending the time to set the action down for trial was made on consent; the real focus of the motion was Mr. Bennett’s request that the Swift defendants be found in contempt for their alleged failure to comply with Kershman J.’s September 20, 2018 order. On this issue, the Swift defendants were the successful parties. The Swift defendants took steps to produce certain documents said to be “missing” from the productions; they refused to produce others on the basis that they do not fall within the scope of Kershman J.’s order. I determined that their refusal to produce was not an act of civil contempt. As the successful parties, the Swift defendants are presumptively entitled to their costs of the motion.
[6] Rule 57.03(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that on the hearing of a contested motion, the court shall fix the costs of the motion and order them to be paid within 30 days unless the court is satisfied that a different order would be more just. No basis has been advanced by the plaintiff that would justify an order different from that contemplated under r. 57.03(1)(a).
[7] I also reject Mr. Bennett’s contention that costs should be fixed at $950, “consistent with Kershman J.’s order.” This was not a motion for disclosure – it was a motion for contempt in which the plaintiff sought the Swift defendants’ incarceration.
[8] Elevated costs may be warranted in two circumstances. The first is where, as a result of an offer to settle under r. 49, substantial indemnity costs are explicitly authorized. This circumstance does not arise in this case.
[9] The second circumstance is where a party has engaged in conduct that is reprehensible, scandalous, or outrageous: Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66, at para. 28. Although I found that the civil contempt remedy should not have been sought in the circumstances of this case, in my view, this is not one of those “rare and exceptional cases [where substantial indemnity costs should be awarded] to mark the court’s disapproval of the conduct of the party in the litigation: Hunt v. TD Securities Inc. (2003), 2003 CanLII 3649 (ON CA), 66 O.R. (3d) 481 (Ont. C.A.), at para. 123.
[10] The Swift defendants rely on Kular v. Ecosol Solar Technologies Inc., 2012 ONSC 2674, where Beaudoin J. observed at para. 15 that “[c]ontempt is a serious allegation and failure on this point should be sanctioned by an award of costs on a substantial indemnity scale.” I note that in Kular, the contempt motion was dismissed as it was premature: the order of the Master had not been settled and the terms of the order were disputed by the parties. The facts in Kular were different than those before me. Here, the contempt motion was ill-advised and certainly, antithetical to encouraging co-operation in this litigation. However, I do not find that the plaintiff’s litigation conduct was reprehensible, warranting an award of substantial indemnity costs.
[11] The parties submitted bills of costs. Rule 57.01(6) provides that a party seeking costs for a step in the proceeding shall provide a costs outline; a bill of costs is used after a trial: r. 57.01(5).
[12] The Swift defendants’ bill of costs does not disclose the rate charged by counsel, although the rate of $400 is referred to in their costs submissions and can also be derived based on the number of hours and the 60 per cent partial indemnity rate used in the bill of costs. Counsel has fifteen years’ experience.
[13] Together, counsel and an articling student spent 69 hours responding to the motion. While this was undoubtedly a very important motion for the Swift defendants, and one that the plaintiff ought to have expected would be vigorously defended, it was not complex. I find the total number of hours spent to be high, given counsel’s experience and the involvement of an articling student. I expect that there may have been substantial overlap in certain of the tasks completed by senior counsel and the articling student. A much more detailed breakdown of the costs claimed by the Swift defendants would have been both helpful and appropriate. The general summary provided does not permit me to determine the extent to which there was overlap in the hours spent.
[14] Ultimately, the costs fixed by the court “should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant”: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.). One measure of what is fair and reasonable to pay in costs is to consider the costs incurred by the unsuccessful party in addressing the same legal issues. Mr. Bennett’s partial indemnity fees are $7,371.28. This amount is almost identical to the partial indemnity fees claimed by the Swift defendants in relation to counsel only.
[15] Having regard to all the above and the relevant factors in r. 57.01, I find that $9,000, all inclusive, is a fair and reasonable amount for Mr. Bennett to pay to the Swift defendants in respect of the motion. This amount is to be paid by Mr. Bennett within 30 days.
Justice Ryan Bell
Date: May 6, 2021
COURT FILE NO.: CV-15-66579 DATE: 2021/05/06
ONTARIO SUPERIOR COURT OF JUSTICE
RE: John Bennett, Plaintiff AND Sandra Swift, Kemp Waterman, Toni Tegano, and the CIBC, Defendants
BEFORE: Ryan Bell J.
COUNSEL: Timothy Sullivan, for the Plaintiff Bryan Delaney, for the Defendants Sandra Swift, Kemp Waterman, and Toni Tegano
COSTS ENDORSEMENT
Ryan Bell J.
Released: May 6, 2021