Court File and Parties

COURT FILE NO.: CV-21-00655251-0000 DATE: 20210927

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SHERRY ROONEY AND: PURE EXTRACTION LTD., PURE EXTRACTION CORP. and BALRAJ MANN

BEFORE: VERMETTE J.

COUNSEL: Kevin Fox, for the Plaintiff N. Joan Kasozi, for the Defendants

HEARD: In writing.

ENDORSEMENT AS TO COSTS

[1] On August 27, 2021, I released an endorsement dismissing the Defendants’ motion to stay the action on the basis that this Court lacks jurisdiction simpliciter or on the basis of forum non conveniens. The parties were not able to agree on costs and have delivered costs submissions and costs outlines.

Positions of the parties

a. The Plaintiff’s position

[2] The Plaintiff seeks costs on a partial indemnity basis in the amount of $16,533.44, inclusive of HST and disbursements. It is her position that she was the successful party and is entitled to the costs of the matter. In her view, the hours spent on this matter by Plaintiff’s counsel are inherently reasonable as he spent 11.5 hours less than counsel for the Defendants. The Plaintiff submits that counsel’s partial indemnity rate of $425 is reasonable.

[3] The Plaintiff also seeks additional partial indemnity costs in the amount of $1,800.94 for the preparation of costs submissions. She relies on an offer to settle costs in the amount of $15,000.00 that she made to the Defendants.

b. The Defendants’ position

[4] The Defendants submit that there should be no order as to costs. They state that it was reasonable for them to challenge Ontario’s jurisdiction given that all the Defendants are located in British Columbia. They also refer to the fact that they offered to settle the Ontario action for a certain amount, which was not accepted by the Plaintiff. They argue that had the Plaintiff accepted their reasonable offer, the motion would not have proceeded and costs would not have been incurred.

[5] In the alternative, the Defendants challenge the quantum of costs sought by the Plaintiff and argue that an award of costs should not exceed $10,023,92, i.e. the total of the Defendants’ costs outline on a partial indemnity basis. Their position is that this amount is fair and reasonable in light of the nature of the action and the motion, including the fact that this is a simplified procedure matter.

[6] The Defendants submit that the Plaintiff’s offer to settle costs was not a reasonable offer because it only represented a $1,000 reduction of the costs sought by the Plaintiff in her costs outline.

Discussion

[7] I reject the Defendant’s submission that there should be no order as to costs. The Plaintiff was successful on this motion and she is entitled to her costs. Given that the motion argued before me did not deal with the merits of the case, I am not in a position to assess the reasonableness of the Defendants’ offer to settle the action. In any event, I do not think that it is a relevant consideration on this motion. The fact that the Plaintiff declined an offer to settle the entire action does not justify the bringing of an unsuccessful jurisdiction motion by the Defendants. The Defendants can rely on their offer to settle the action when this matter is determined on the merits, but, in the meantime, there are costs consequences for bringing an unsuccessful motion.

[8] Turning to the issue of quantum, I note that, as a general rule of thumb, partial indemnity rates are 60% of full indemnity rates: see James v. Chedli, 2020 ONSC 4199 at para. 14. The partial indemnity rate used for Plaintiff’s counsel ($425) is approximately 77% of Plaintiff’s counsel’s full indemnity rate ($550). A more appropriate partial indemnity rate would be $330 (i.e. 60% of $550). Using this rate and making the ensuing changes to the Plaintiff’s costs outline, the total amount of partial indemnity costs is reduced to $12,910.38 for the motion and $1,398.38 for the preparation of the costs submissions. Given that the sum of these two amounts is less than $15,000.00, I do not consider the Plaintiff’s offer to settle costs as a factor favouring the Plaintiff. However, parties can claim costs associated with the preparation of costs submissions, and I do not think that the Plaintiff is disentitled to do so because of her offer to settle. This is especially the case since I do not have any evidence that the Defendants made any counter-offer to settle costs.

[9] While it is true that the Defendants’ counsel, collectively, spent more hours on the motion than Plaintiff’s counsel, it is noteworthy that two of them are significantly more junior than Plaintiff’s counsel, with a lower hourly rate. However, I accept that this was an important motion for the Plaintiff and that the Defendants were or should have been aware of that.

Conclusion

[10] Taking the foregoing into account, as well as the factors set out in Rule 57.01(1) of the Rules of Civil Procedure, the principle of proportionality and the fact that this is a simplified procedure matter, I find that the fair and reasonable award of costs on a partial indemnity basis in favour of the Plaintiff is in the all-inclusive amount of $12,000.00. In my view, this is an amount that the Defendants should reasonably have expected to pay in the event that they were unsuccessful on the motion, especially in light of the work done by their own lawyers.

[11] Accordingly, I order that the Defendants pay to the Plaintiff her costs of the motion in the all-inclusive amount of $12,000.00 within 30 days.

Vermette J.

Date: September 27, 2021