COURT FILE NO.: CV-21-87637
DATE: 2022/12/19
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Stephen Emond and Claudette Emond, Applicants
AND
Trillium Mutual Insurance Company, Respondent
BEFORE: Justice R. Ryan Bell
COUNSEL: Joseph Obagi, for the Applicants
Pat C. Peloso and Jaime Wilson, for the Respondent
HEARD: In writing
costs ENDORSEMENT
[1] The Emonds were the successful parties on the application. They seek their costs in the amount of $46,351.88, all inclusive, with fees calculated on a partial indemnity basis.
[2] Trillium objects to the amount claimed: it maintains the costs claimed by the Emonds are excessive and unreasonable in the circumstances. Trillium points out that its full indemnity fees for responding to the application totalled $25,341.28 and asks that the court award costs in an amount that falls within the range of the parties’ respective partial indemnity calculations: between $16,920.43 (Trillium) and $40,887.59 (the Emonds).
[3] In assessing costs, the overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by the actual costs incurred by the successful party: Boucher v. Public Accountants Council (Ontario), 2004 CanLII 14579 (ON CA), at para. 24.
[4] A costs award should reasonably reflect the amount of time and effort that was objectively warranted by the proceeding: Moon v. Sher, 2004 CanLII 39005 (ON CA), at para. 33. The time spent by the unsuccessful party, while not conclusive as to the appropriate award of costs, is a relevant consideration where there is an allegation of excess in respect of a particular matter: Risorto v. State Farm Mutual Automobile Insurance Co., 2003 CanLII 43566 (ON SC), at para. 10.
[5] The parties agree that this application was relatively complex. Both sides had a significant stake in the application’s outcome and both retained senior litigation counsel. I find the hourly rates claimed by applicants’ counsel on a partial indemnity basis are reasonable for their year of call and their level of litigation expertise.
[6] The dispute between the parties lies with the amount of time spent: a total of 122.3 hours by applicants’ counsel compared to 72.6 hours by Trillium’s counsel. It is not surprising that the applicants would spend more time advancing their case than Trillium given that they were “leading the charge” and had the burden of persuading the court of the merits of their position. The question is whether it is fair and reasonable for Trillium to expect to pay an amount of costs that reflects 50 more hours than its own counsel spent on the matter.
[7] I find the total number of hours spent by applicants’ counsel to be high, given senior counsel’s experience. I expect that there may have been some overlap in certain of the tasks completed by senior counsel and junior counsel. A more detailed breakdown of the costs claimed by the applicants would have been helpful. The general summary provided does not permit me to determine the extent to which there was overlap in the hours spent.
[8] There is no issue taken with the amount for disbursements - $5,464.29 – claimed by the applicants.
[9] Having regard to the principles in Boucher and the relevant factors in r. 57.01, I find that $40,000, all inclusive, is a fair and reasonable amount for Trillium to pay for costs in respect of the application. This amount is to be paid to the applicants within 30 days.
Justice Ryan Bell
Date: December 19, 2022
COURT FILE NO.: CV-21-87637
DATE: 2022/12/19
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Stephen Emond and Claudette Emond, Applicants
AND
Trillium Mutual Insurance Company, Respondent
COUNSEL: Joseph Obagi, for the Applicants
Pat C. Peloso and Jaime Wilson, for the Respondent
costs ENDORSEMENT
Ryan Bell J.
Released: December 19, 2022