COURT FILE NO.: CV-17-0068-00
DATE: 2021-07-19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Hewitson Holdings Inc. o/a Northshore Self Storage
Mr. V. Popescu, for the Plaintiff, Hewitson Holdings Inc.
Plaintiff
- and -
Bur-Met Contacting Ltd. and Concrete Walls (Lakehead) “1983” Limited
Mr. A. Demeo, for the Defendants Concrete Walls “1983” Limited Ms. R. Clinker, for the Defendants Bur-Met Contracting Ltd. (not appearing at the cost argument)
Defendants
HEARD: via Zoom on July 14, 2021 at Thunder Bay, Ontario
Madam Justice H. M Pierce
Reasons on Costs for Motion to Amend Statement of Claim
[1] The plaintiff moved for leave to amend its statement of claim to continue this action under the simplified procedure. The defendants did not object to the amendment, but sought costs unnecessarily incurred leading up to the amendment, pursuant to Rule 76.13, arguing that the plaintiff knew, or should have known when the claim was originally pleaded, that any damages would fall within the simplified procedure.
[2] The court awarded the defendants costs unnecessarily incurred and reserved the costs of the motion itself. The court must determine a fair and reasonable amount of costs for Concrete Walls, the successful defendant.
[3] Costs for the co-defendant, Bur-Met Contracting, were settled in advance of the costs hearing. The remaining defendant, Concrete Walls, seeks substantial indemnity costs of $15,000 plus HST for the motion. It submits that the consequences of the motion to amend were more significant than a production motion argued in 2020 for which costs of $7,500 were awarded to Bur-Met which took the lead in argument. Costs of $2,500 were awarded to Concrete Walls for its subsidiary role in the production motion.
[4] Mr. Demeo charged his client a reduced rate of $290 per hour. This is a modest rate for counsel of 39 years’ experience. By contrast, Mr. Popescu has 8 years’ experience, and charged his client an hourly rate of $350. Mr. Demeo submits that Mr. Popescu seeks to take advantage of his reduced rate when arguing costs.
[5] Costs are an indemnity to a litigant for costs actually incurred. Therefore, the starting point in determining costs is counsel’s hourly rate. Substantial indemnity costs are reserved for blameworthy conduct that the court wishes to sanction. That did not occur here. Partial indemnity costs are appropriate.
[6] Mr. Demeo submits that, by agreement of defence counsel, Concrete Walls took the lead role in arguing the defence position on the motion to amend and any costs award should reflect the time actually spent.
[7] Mr. Demeo also submits that the bill of costs submitted by the plaintiff citing partial indemnity fees and disbursements of $5,618.57 does not deal with the real issues on the motion – costs unnecessarily incurred - and therefore is not indicative of the reasonable expectations of the plaintiff concerning costs.
[8] There is merit to this submission. Mr. Popescu’s written and oral argument began with the principles applicable to amending a pleading when he knew that the defendants were not opposed to the amendment itself.
[9] The plaintiff submits that the costs claimed for 59.6 hours are excessive. It suggests that the costs awarded to Concrete Walls should be the same as those agreed upon for Bur-Met: $4,583.00. It contends that since both defendants researched the issues and filed overlapping facta, no distinction should be made in costs.
[10] Bur-Met’s bill of costs claims 23.2 hours on the motion, compared with 28.2 hours claimed by the plaintiff. By contrast, Concrete Walls claims 59.6 hours. The latter includes preparation for and attendance at this costs hearing.
[11] Mr. Demeo’s factum on the amendment motion, including authorities, was 16 pages, while the Bur-met factum was 13 pages. The plaintiff filed two facta, 22 pages and 5 pages respectively. Generally, the defendants’ arguments did not overlap. Mr. Demeo took the lead role in arguing the motion, with Ms. Clinker taking a subsidiary role.
[12] On the costs hearing, Mr. Demeo filed a 9-page factum plus a bill of costs. The plaintiff’s factum on the costs hearing was 21 pages. Given what was really in issue – costs unnecessarily incurred – and the division of labour by the defendants’ counsel, I would have not expected Concrete Walls’ bill of costs to be more than double that of its co-defendant.
[13] Having regard for what is in issue in the case and the costs previously awarded for unnecessary proceedings, I have concluded that the plaintiff should pay Concrete Walls its partial indemnity costs fixed at $10,000 plus HST. An order will issue accordingly.
“original signed by”
The Hon. Madam Justice H.M. Pierce
Released: July 19, 2021
COURT FILE NO.: CV-17-0068-00
DATE: 2021-07-19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Hewitson Holdings Inc. o/a Northshore Self Storage
Plaintiff
- and -
Bur-Met Contacting Ltd. and Concrete Walls (Lakehead) “1983” Limited
Defendants
REASONS ON COSTS FOR MOTION TO AMEND STATEMENT OF CLAIM
Pierce J.
Released: July 19, 2021
/lvp