Court File and Parties
COURT FILE NO.: CV-19-00617274, CV-19-00622149
DATE: 20210720
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Sutton Group-Admiral realty inc. and pavlo antonenko Applicants
- and -
ganna taborovska Respondent
Counsel: Matthew Kim, for the Applicants Vladimira Ivanov, for the Respondent
HEARD at Toronto: in writing
COSTS ENDORSEMENT
DAVIES J.
[1] Pavlo Antonenko is a real estate agent with Sutton Group-Admiral Realty. He brought an application to enforce the Buyer’s Representation Agreement (“BRA”) signed by Ganna Taborovska on November 12, 2018. Mr. Antonenko sought to recover $85,000 or 2.5 percent of the purchase price of the house Ms. Taborovska bought in late November 2018 with a different agent.
[2] I found that the BRA was void and dismissed Mr. Antonenko’s application. I found that Ms. Taborovska had proven each element of the non est factum defence: I found that she was mistaken about the nature and character of the BRA, her misunderstanding of the BRA was caused by a misrepresentation by Mr. Antonenko and she was not careless in signing the BRA based on Mr. Antonenko’s representations (Sutton Group-Admiral Realty Inc. v. Taborovska, 2021 ONSC 2837).
[3] Ms. Taborovska now seeks $38,293.35 in partial indemnity costs.
[4] The Applicants agree that Ms. Taborovska is entitled to costs on a partial indemnity scale. However, they argue the rates charged by Ms. Taborovska’s counsel are not reasonable. They also argue the number of hours claimed and the expert’s fees are unreasonable.
[5] Any cost award must be “fair and reasonable” and must balance the goals of compensating a successful party with fostering access of justice: Boucher v. Public Accountants Council (Ontario), 2004 CanLII 14579 (ONCA). Rule 57.01 sets out several factors the Court may consider in exercising its discretion including the time spent, the experience of counsel, the results achieved, the complexity of the matter, the conduct of the parties and the amount the unsuccessful party could reasonably expect to pay.
Counsel Fees
[6] Ms. Ivanov did the vast majority of the work on Ms. Taborovska’s behalf. She argued the summary judgment motion, which was dismissed, and she appeared on Ms. Taborovska’s behalf at trial. Ms. Ivanov was called to the bar in 2015. Her actual rate is $345 per hour. Her partial indemnity rate is $207 per hour. Two other lawyers worked on Ms. Taborovska’s file. Mr. Ross has fifteen years experience. He only did 3.8 hours of work on this file. His actual rate is $550 per hour and his partial indemnity rate is $330 per hour. Ms. Daniel is a first-year lawyer. Ms. Daniel did only 2.6 hours of work on the file. Her actual rate is $265 per hour and her partial indemnity rate is $159 per hour.
[7] The Applicants argue that counsel’s hourly rates should be adjusted to comply with the Costs Grid. The Applicants argue that Ms. Ivanov’s rate should be reduced to $225 per hour, Mr. Ross’s rate should be reduced to $325 per hour and Ms. Daniel’s rate should be reduced to $165 per hour.
[8] Until 2005, Tariff A to the Rules of Civil Procedure contained a Costs Grid that set the maximum hourly rates counsel could claim in costs. For a lawyer with less than ten years experience, like Ms. Ivanov and Ms. Daniel, the maximum fee on a partial indemnity scale was $225 per hour ($300 per hour on a substantial indemnity scale). For a lawyer with fifteen years experience, like Mr. Ross, the cap was $300 per hour on a partial indemnity scale ($400 per hour on a substantial indemnity scale).
[9] Tariff A to the Rules of Civil Procedure was amended on July 1, 2005: O.Reg 42/05: Rules of Civil Procedure. The Costs Grid was repealed. Tariff A now says that the fee for any step in a proceeding “shall be determined in accordance with section 131 of the Courts of Justice Act and the factors set out in subrule 57.01(1).” Since the Costs Grid was repealed, partial indemnity rates for counsel fees tend to be fixed at 55 or 60 percent of counsel’s actual hourly rate, so long as counsel’s actual rate is reasonable: Inter-Leasing Inc. v. The Minister of Revenue, 2014 ONCA 683 at para. 5.
[10] I am satisfied that the hourly rates claimed by Ms. Ivanov, Mr. Ross and Ms. Daniel are reasonable given their respective years of experience. The hourly rates claimed by Ms. Ivanov and Ms. Daniel on a partial indemnity basis are actually less than the maximum that would have been allowed under the Cost Grid. The rate charged by Mr. Ross is slightly higher than the maximum rate allowed in 2005 under the Cost Grid but is nonetheless reasonable.
Expert Fees
[11] The Applicants argue that Ms. Taborovska should not be reimbursed for the cost of her expert because the expert was not called as a witness at trial and the expert’s evidence did not factor into my final decision. It is true that the expert was not called at trial. I ordered a trial on three discrete factual issues after the summary judgment motion. The three factual issues focused on the circumstances in which Ms. Taborovska signed the BRA. The expert opinion was not relevant to those issues. Nevertheless, it was reasonable for Ms. Taborovska to retain an expert on the standard of care of a licensed real estate agent practicing in Ontario and what is expected of real estate agents when they explain the BRA and other standard form documents to their clients. The issue in this case was whether Mr. Antonenko adequately explained the BRA to Ms. Taborovska or her parents. The expert’s opinion was relevant to that issue. The fact that the expert opinion was not ultimately determinative of an issue at trial does not mean it was unreasonable for Ms. Taborovska to retain an expert as part of her defence.
[12] The expert’s fees are $1,695. I am satisfied that the expert fees are reasonable given the scope of the opinion provided.
Number of Hours Claimed
[13] The Applicants argue that Ms. Taborovska unnecessarily complicated the proceedings because she filed a cross application seeking a declaration that the BRA was invalid. I agree that it was not necessary for Ms. Taborovska to file a cross application. The issues and arguments Ms. Taborovska raised in her cross application could have been raised in her response to Mr. Antonenko’s application. However, her decision to file a cross application did not add significantly to the length or complexity of the matter.
[14] The Applicants also argue that they should not have to pay the costs associated with setting the trial dates after their summary judgment motion was dismissed. The Applicants’ summary judgment motion was heard on February 19, 2020. I released an endorsement on February 25, 2020 dismissing the motion and ordering a trial. Less than three weeks later – on March 15, 2020 – regular court operations were suspended in response to the COVID-19 pandemic.
[15] A case conference was held on May 27, 2020 to schedule the trial. By that time, Ms. Taborovska’s parents, who were anticipated to be witnesses at the trial, were in Ukraine and unable to travel to Canada because of global travel restrictions. Three more case conferences were held to discuss whether Ms. Taborovska’s parents could travel to Canada or make arrangements to testify by video. Ms. Taborovska was given several months to make arrangements for her parents to return to Canada to testify in person or ensure they had access to a stable internet connection to allow them to testify from Ukraine.
[16] Given the suspension of regular court operations and the transition to virtual hearings, a case conference was necessary to discuss how this trial would proceed. However, the other three case conferences would not have been necessary if Ms. Taborovska’s parents were in Canada. I agree with the Applicants that they should not bear the cost of the three case conferences convened for the sole purpose of discussing the availability of Ms. Taborovska’s witnesses and the logistics of having them testify from Ukraine.
Conclusion
[17] The Applicants are ordered to pay $35,000 in costs inclusive of HST and disbursements. The Applicants are jointly and severally liable for the costs: Meady v. Greyhound Canada Transportation Corp., 2013 ONSC 5568 at para. 90, Scala v. Toronto Police Series Board, 2019 ONSC 4359 at paras. 16 - 19.
Davies J.
Released: July 20, 2021
COURT FILE NO.: CV-19-00617274, CV-19-00622149
DATE: 20210720
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Sutton Group-Admiral realty inc. and pavlo antonenko Applicants
- and -
ganna taborovska Respondent
Matthew Kim, for the Applicants Vladimira Ivanov, for the Respondent
HEARD at Toronto: in writing
COSTS ENDORSEMENT
Davies J.
Released: July 20, 2021