COURT FILE NO.: CV-15-66873
DATE: 2022-07-22
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Neil Doef, Plaintiff
AND
Hockey Canada, The Hockey Canada Foundation and AIG Insurance Company of Canada, Defendants
BEFORE: The Honourable Mr. Justice Marc Smith
COUNSEL: Thomas G. Conway and Abdalla Barqawi, Counsel for the Plaintiff
Margaret L. Waddell and Sophia Irish Dales, Counsel for the Defendant, Hockey Canada
HEARD: In writing
COSTS DECISION
M. Smith J
[1] On February 3 and 4, 2022, I heard two motions. The first motion was for a summary judgment brought by the Defendant, AIG Insurance Company of Canada (“AIG”) against the Plaintiff, Neil Doef (“Doef”). The second motion was brought by Hockey Canada seeking leave to withdraw an affidavit sworn in support of their motion for summary judgment, scheduled to proceed on the first day of trial, and replace it with a new and substantially similar affidavit. On March 3, 2022, I released my decision dismissing both motions and vacating Hockey Canada’s motion for summary judgment (2022 ONSC 1411).
[2] The parties were encouraged to resolve the issue of costs. AIG and Doef reached a settlement on costs. Hockey Canada and Doef were unable to agree on costs.
[3] Doef seeks two costs awards: (a) his partial indemnity costs for the Hockey Canada motion to withdraw its affidavit in the amount of $11,512.50, excluding taxes; and (b) full indemnity for his costs thrown away from the summary judgment motion in the amount of $58,641.50, excluding taxes. Alternatively, costs on a substantial indemnity or partial indemnity, in the respective amounts of $52,683.60 and $35,184.90, excluding taxes.
[4] Hockey Canada concedes that Doef is entitled to some costs for both matters but says that the amounts sought by Doef are excessive. It is submitted that the costs of the motion should be fixed at the all-inclusive sum of $7,062.50, and that costs thrown away should be $5,000.00 plus applicable taxes.
[5] For reasons that follow, Doef is awarded costs of $25,000.00, all-inclusive.
Legal principles
[6] Costs are at the discretion of the court: Courts of Justice Act, R.S.O. 1990, c. C43, s. 131(1).
[7] Rules 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, sets out the factors that a court may consider when deciding on a cost award.
[8] The overriding principles of fairness and reasonableness must be applied to each individual case: Boucher v. Public Accountants Council for the Province of Ontario, (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291.
[9] Costs on a motion are commonly awarded on a partial indemnity basis unless there are compelling reasons to justify an award at a higher scale.
[10] Costs thrown away are generally payable on a full recovery basis because the purpose of such an award is to indemnify a party for wasted time. The court must determine what costs have actually been wasted: Caldwell v. Caldwell, 2015 ONSC 7715 at paras. 11 and 12.
Analysis
[11] In this case, the relevant 57.01(1) factors to consider are: (a) complexity of the proceeding; (b) importance of the issues; (c) principle of indemnity; and (d) reasonable expectations of the parties to pay. The other relevant factor to consider is whether the costs thrown away have all been wasted.
Complexity of the proceedings and importance of the issues
[12] Hockey Canada’s motion to withdraw an affidavit was not complex. In fact, Doef’s responding record comprises one short affidavit from a law clerk.
[13] A motion for summary judgment is invariably more complex than a procedural motion. However, in this case, it was limited to the issue of the scope and duty of care that was owed by Hockey Canada. It did not involve multiple complex variables that needed to be considered.
[14] Although Hockey Canada’s motion to withdraw an affidavit had some importance, it was the motion for summary judgment that had the greatest importance to the parties because it could dispose of Doef’s action in its entirety.
Principle of indemnity
[15] The hourly rates charged by the lawyers for both parties are reasonable and commensurate with experience.
[16] The concerning issue is the time spent by the lawyers for Doef.
[17] For Hockey Canada’s motion, Doef’s lawyers spent 62.3 hours, which included time for the Case Conference, review and preparation of motion materials, and attendance at the motion. In comparison, Hockey Canada spent 25 hours for the motion, but it did not include any time spent for the Case Conference.
[18] Doef’s legal team for the motion consists of three lawyers, one law student and one law clerk. While no reasons were given for using five people, duplication of work is inevitable, and it increases the costs. In my view, the involvement of multiple lawyers was not required because the motion was not complex. Also, I find that the time spent at the Case Conference is not properly recoverable at the motion, but rather at trial.
[19] On the issue of the costs thrown away, Doef's legal team spent 214.2 hours of time, again with multiple timekeepers. The time spent was for the Case Conference, review and drafting of motion materials, research, analysis, witness and cross-examination preparations, and attendance. Conversely, Hockey Canada's legal team of two, spent 27 hours. Their time of costs thrown away is limited to the preparation of motion materials and preparation for the cross-examination of the affiant who was no longer available.
[20] Although the issue of the motion for summary judgment was important to Doef and he needed to put his best foot forward, I find that the time spent is excessive. Cross-examinations did not take place, the motion was not argued, and to my knowledge, a factum was not drafted. Duplication of work partially explains why the hours spent by Doef’s legal team are approximately eight times the amount of time spent by the lawyers for Hockey Canada. Furthermore, as noted above, time spent for the Case Conference is not recoverable at this stage.
Reasonable expectations of the parties to pay
[21] The total fees expended by the parties are not comparable.
[22] On the motion, Doef’s partial indemnity costs are $21,681.88, while Hockey Canada’s costs are $13,786.00. For the costs thrown away, Doef argues that the partial indemnity costs are $39,758.94. Hockey Canada submits that they should be no more than $7,853.50.
[23] It is not disputed that Hockey Canada would have reasonable expectations to pay Doef’s costs if he was successful on the motion. However, when combining the costs being sought by Doef, I do not find that the total all-inclusive amount of $61,440.82 would fall within Hockey Canada’s reasonable expectations. In my view, this amount far exceeds any fair and reasonable expectation that one may have for the time spent on Hockey Canada’s procedural motion and the work completed by Doef’s legal team on the summary judgment motion.
The wasted costs thrown away
[24] Hockey Canada argues that some of the steps taken in preparation of the motion for summary judgment can be repurposed at trial.
[25] Doef responds that all the work that was done for the summary judgment motion is of no value in the trial preparation. I disagree.
[26] To properly defend a motion for summary judgment, a party must assess the totality of the evidence, with a view of putting forth a position that there are several triable issues. This type of assessment must be comprehensive. Doef’s lawyers spent approximately 214 hours in defending Hockey Canada’s motion for summary judgment. To me, the time spent represents a very thorough review of the evidence.
[27] According to Doef’s Bill of Costs, the work undertaken included, amongst other things, reviewing Hockey Canada’s evidence, drafting Doef’s evidence, witness and cross-examination preparations, and attendance. In my view, this type of work and review of the case is not lost, and certain portions can and will be used as preparation work for trial. Recovery on a full indemnity basis is not warranted.
CONCLUSION
[28] In sum, I find that the costs claimed by Doef are unreasonable. In addition, with specific reference to the costs thrown away for the summary judgment motion, some of efforts made by Doef’s legal team are not lost and will be useful for the upcoming trial. As such, in exercising my discretion, a reasonable and proportionate amount of costs for the motion and the costs thrown away is $25,000.00, all-inclusive, payable by Hockey Canada to Doef, within 30 days of this Costs Decision.
M. Smith J
Released: July 22, 2022
COURT FILE NO.: CV-15-66873
DATE: 2022-07-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Neil Doef
Plaintiff
– and –
Hockey Canada, The Hockey Canada Foundation and AIG Insurance Company of Canada
Defendants
COSTS DECISION
M. Smith J
Released: July 22, 2022