BARRIE COURT FILE NO.: CV-17-1261
DATE: 20210816
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Peter Letwin
Plaintiff
– and –
Camp Mart, Camp Mart Canada/401 Auto RV Canada Inc.
Defendant
David Thompson and Alex Vigneault, for the Plaintiff
Wendy Ngai, for the Defendant
HEARD: via costs submissions in writing
REASONS FOR RULING ON COSTS
LEIBOVICH J.
[1] On June 21, 2021, I dismissed the plaintiff’s action against the defendants. The plaintiff had purchased an RV. Before he picked it up, it was stolen. I found that the defendants were a gratuitous bailee and their security system met the appropriate standard. This is my decision with respect to costs.
Law and Analysis
[2] The jurisdiction of this court to award costs is found in s. 131(1) of the Courts of Justice Act, R.S.O. 1990, C. 43:
131(1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.
[3] Rule 57.01(1) of the Rules of Civil Procedure sets out the factors for the court to consider on an award of costs:
57.01(1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
a. the amount claimed and the amount recovered in the proceeding;
b. the apportionment of liability;
c. the complexity of the proceeding;
d. the importance of the issues;
e. the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
f. whether any step in the proceeding was,
i) improper, vexatious or unnecessary, or
ii) taken through negligence, mistake or excessive caution;
g. a party's denial of or refusal to admit anything that should have been admitted;
h. whether it is appropriate to award any costs or more than one set of costs where a party,
i) commenced separate proceedings for claims that should have been made in one proceeding, or
ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different solicitor; and
i. any other matter relevant to the question of costs.
- The fact that a party is successful in a proceedings or a step in a proceedings does not prevent the court from awarding costs against the party in a proper case.
[4] The myriad of factors listed in Rule 57.01 ensures that a court considers all the relevant circumstances which allows the court to determine an amount that is fair and reasonable for the unsuccessful party to pay in a particular proceeding rather than what the actual costs were of the successful litigant: see Boucher v. Public Accountants Council for the Province of Ontario (2004) 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.); Zesta Engineering v. Cloutier (2002), 2002 45084 (ON CA), 164 O.A.C. 234 (C.A.); Moon v. Sher, (2004), 2004 39005 (ON CA), 246 D.L.R. (4th) 440 (C.A.); Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, [2018] O.J. No. 1340, 2018 ONCA 239 at para. 43.
Request for Substantial Indemnity
[5] The defendants state that they made a rule 49.10 offer on October 22, 2020. They offered to settle for $15,000. The offer was rejected, and the defendants submit that they should be entitled to costs on a substantial indemnity basis from October 22, 2020 forward. I disagree. The offer of $15,000 cannot be considered a meaningful offer in the circumstances of the case and the history of the matter at the point. As stated in Crosby v. Wharton, [2006] OJ No 1192, 146 ACWS (3d) 789 at para. 3:
The offer outstanding at the date of trial was a token offer perhaps to attempt to engage rule 49 of the Rules of Civil Procedure. It did not bear any semblance of reality had there been a split in liability, even accepting the defendants' suggestions as to the range of damages, given the serious of the plaintiff Marley Crosby's injuries.
[6] Costs shall be awarded on a partial indemnity basis.
[7] The defendants have submitted that the time spent by defendants’ counsel is reasonable and note that “a substantial amount of work was performed by more junior counsel.” This was a Rule 76 trial. The trial was run very efficiently by counsel and was completed within three days. Ms. Ngai was the only counsel who attended the trial. The bill of costs reflects the time she spent in court as well as 71.1. hours that she spent preparing for court. However, the bill of costs also reflects 69.8 hours spent by three other lawyers preparing for trial. I am not saying that these lawyers did not work on the file, but given the nature of this case, I do not believe that the unsuccessful party would reasonably expect all the time spent by these counsel. Of course, it would be expected that others would assist Ms. Ngai but not to the degree documented in the bill of costs. I will therefore reduce the costs awards accordingly.
[8] Therefore, having regard to all of the factors, the plaintiff shall pay costs to the defendants inclusive of HST and disbursements in the amount of $60000. The plaintiff shall have six months to pay.
Leibovich J.
Released: August 16, 2021
BARRIE COURT FILE NO.: CV-17-1261
DATE: 20210816
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Peter Letwin
Plaintiff
– and –
Camp Mart, Camp Mart Canada/401 Auto RV Canada Inc.
Defendant
REASONS FOR ruling on costs
Leibovich J.
Released: August 16, 2021