COURT FILE NO.: CV-14-0166-00
DATE: 2021-07-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Lorico Inc.
Mr. M. Cupello, for the Plaintiff
Plaintiff
- and -
539348 Ontario Limited
Mr. J. Clark, for the Defendant
Defendant
HEARD: Via Zoom on July 19, 2021 at Thunder Bay, Ontario
Madam Justice H. M Pierce
Reasons for Costs on Motion for Security for Costs
[1] The defendant was wholly successful in a two-hour motion requiring the plaintiff to post $30,000 as security for costs. It claims its partial indemnity costs in the amount of $14,518.73 plus disbursements and HST.
[2] The plaintiff submits that partial indemnity costs ordered should be in the range of $5,000 - $6,000.
[3] Costs are discretionary. The general principles informing the exercise of the discretion are found at Rule 57.01 of the Rules of Civil Procedure. It is settled law that the quantum of costs should be fair and reasonable, having regard for the reasonable expectations of the losing party and in proportion to what is in issue.
[4] In this case, the plaintiff did not file a bill of costs prior to the argument. It was, instead, emailed to the court after argument concluded. It would be unfair to accept late-filed material that is not before the court during argument. Opposing counsel had no opportunity to review it and make submissions. Nor could the court review it in preparation for the argument. Consequently, I will not consider it.
[5] The case law cited by the plaintiff and filed just a few hours before the motion was heard focused on the merits of motions for security for costs. The cases contain no analysis of the reasons for costs awarded for arguing those motions. As these cases are fact-driven, the authorities are not helpful.
[6] The defendant’s bill of costs includes time claimed for four legal assistants and one law clerk. Where a law clerk has appropriate education and experience and performs tasks expected of a law clerk (as opposed to secretarial tasks), time for a law clerk is claimable in a bill of costs: see “Information to the Profession” found at Rule 57 of the Rules of Civil Procedure.
[7] Otherwise, the lawyer’s hourly rate is expected to include the costs of running a law practice, such as secretarial salaries and overhead. There is no basis in the Rules of Civil Procedure or at common law to claim secretarial time in partial indemnity costs. The time claimed for legal assistants is therefore disallowed.
[8] On the main motion, the moving party filed an affidavit of 169 pages including exhibits, a supplementary responding affidavit of 40 pages plus exhibits, a factum and compendium on the motion. Costs submissions were five pages plus a bill of costs.
[9] By contrast, the plaintiff filed an affidavit of 369 pages and an entire discovery transcript on the main motion, much of which was not referred to in argument. The defendant’s counsel submits that if a party does not take the trouble to streamline its case to the essential evidence, it cannot complain if the opposing party claims its costs for reviewing all the unnecessary material.
[10] I agree with this submission. Experience indicates that electronic litigation takes longer, both for counsel and the court. Effective litigators will realize that in an era of electronic advocacy, less is more. Unnecessary documents and unhelpful case law do not buttress a case; they only increase the time for preparation, argument, and ultimately for the court to craft reasons. Consequently, costs are increased for all parties and adjudication is delayed.
[11] Mr. Cupello took no issue with the disbursements of $1,100, including HST. In my view, including time spent preparing for and attending at the costs hearing as well as time devoted to the substantive motion, it is reasonable that the plaintiff should pay to the defendant partial indemnity costs fixed at $10,000 inclusive of HST and disbursements. An order will issue accordingly.
“original signed by”
The Hon. Madam Justice H.M. Pierce
Released: July 20, 2021
COURT FILE NO.: CV-14-0166-00
DATE: 2021-07-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Lorico Inc.
Plaintiff
- and -
539348 Ontario Limited
Defendant
REASONS FOR COSTS ON MOTION FOR SECURITY FOR COSTS
Pierce J.
Released: July 20, 2021
/lvp