COURT FILE NO.: CV-20-001338
DATE: 20210727
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RALPH PETER RIEDER zu WALLBURG and ADMG PUBLISHING LTD.
Plaintiffs/Responding Parties
– and –
PLISTA GMBH, MICHEL GAGNON, STEFANIE KOHNERT and STEFAN KLIMEK
Defendants/Moving Parties
Douglas J. Spiller, for the Plaintiffs
Elizabeth Kurz, for the Defendants
HEARD: May 28,2021
COSTS ENDORSEMENT
RSJ EDWARDS:
[1] On June 21, 2021, I released my reasons for decision dismissing the plaintiffs claim for lack of jurisdiction. I have now received the cost submissions of the parties. The defendants being the successful party seek costs fixed in the amount of $30,000 on a partial indemnity basis. The plaintiff as the unsuccessful party suggests that the appropriate quantum of costs that this court should award is in the order of $5000.
[2] In fixing costs, the court must be guided by the principles laid down by the Court of Appeal in Boucher v Public Accountants Council for the Province of Ontario (2004) 2004 CanLII 14579 (ON CA), 71 O.R. (3rd) 291 (C.A) as well as Davies v Clarington (Municipality) et al 2009 ONCA 722. The costs which this court awards should be in amount that the unsuccessful party might have reasonably contemplated that the defendants would have incurred in pursuit of this motion. The cost award must be fair, reasonable, and proportionate and reflect the principles of Rule 57.01 of the Rules of Civil Procedure. The award of costs should not be a simple mathematical calculation of hours times hourly rates.
[3] In the bill of costs submitted by the defendants, it is apparent that approximately 58 hours were spent in pursuit of the motion that was ultimately successful. Of the hours claimed 18 hours were incurred by senior counsel none of whom appeared before this court. The hourly rates claimed by senior council range between $730 per hour to $940 per hour. Counsel who argued this matter on behalf of the defendants Elizabeth Kurz is a 2018 year of call. Her actual hourly rate is $500 per hour. The partial indemnity rate claimed on behalf of Ms. Kurz is $300 per hour. With due respect to Ms Kurz, such an hourly rate is not a partial indemnity rate that this court can contemplate.
[4] The order of this Court reflected in my Reasons for Decision obtained by Ms. Kurz on behalf of the defendants demonstrates the skill that she brought to the end result obtained. Senior council are to be commended in providing the younger members of the Bar an opportunity to appear before the court and to make submissions in cases like this. These opportunities will ultimately allow junior counsel to hone their advocacy skills. That said however the losing party, such as the plaintiff in this case, in my view should not be expected to pay for all of the additional costs incurred by senior council.
[5] At the completion of the argument in this case, I asked counsel for their input with respect to the costs that their client might expect to pay if they were the losing party, and the costs that they might expect to receive if they were the losing party. Neither counsel would have been aware of the court’s ultimate disposition and as such the answers provided by counsel help inform this court’s understanding of what the winning and or losing party might expect to pay. In my reasons, for decision I reflected that the defendant expected to either pay or receive costs in the range of $20,000 to $30,000. In my view, it is important to obtain the input of counsel prior to the release of the court's decision as it relates to the quantum of costs. Counsel for the plaintiff, the losing party in this matter, suggested at the end of argument, that the appropriate quantum of costs would be in the range of $5000. Clearly, the Plaintiff as the losing party had an expectation that was well below the actual costs incurred by the defendants. With the costs of litigation continually increasing, it is important that counsel have a serious “heart to heart” discussion with his or her client prior to embarking on what everyone should know will be costly litigation. The client fundamentally must understand that as a losing party he or she may ultimately become responsible for very significant costs incurred by the successful party.
[6] In my view, an appropriate award of costs in this case is $15,000. Such an award reflects the principles of Rule 57.01 and the principle that the award of costs must be fair and reasonable. While the award of $15,000 is greater than what counsel for the losing party suggested would be an appropriate award, nonetheless in my view it reflects what an informed client could reasonably have expected to have paid in response to a motion of moderate complexity involving principles of law that were generally not in dispute. The cost award of $15,000 is in all inclusive award including HST and disbursements and is payable within 30 days.
Regional Senior Justice M.L. Edwards
Released: July 27, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RALPH PETER RIEDER zu WALLBURG and ADMG PUBLISHING LTD.
Plaintiffs/Responding Parties
– and –
PLISTA GMBH, MICHEL GAGNON, STEFANIE KOHNERT and STEFAN KLIMEK
Defendants/Moving Parties
COSTS ENDORSEMENT
Regional Senior Justice M.L. Edwards
Released: July 27, 2021