Court File and Parties

Court File No.: CV-19-00629544-0000 Date: 2023-09-25 Ontario Superior Court of Justice

Between: Samine LLC, Respondent – and – Digital Shovel Holdings Inc. and Scot Johnson, Appellants

Counsel: Varoujan Arman, for the Respondent Jordan Goldblatt and Sydney McIvor, for the Appellants

Heard: In Writing

Costs Endorsement

A.P. Ramsay J.

[1] The plaintiff/respondent, Samine LLC (“Samine”), seeks its costs of an appeal of the order of Associate Justice La Horey dated August 9, 2022, which I dismissed, with reasons reported at Samine LLC v. Digital Shovel Holdings Inc., 2023 ONSC 3786.

[2] In its Costs Outline delivered prior to the hearing, Samine sought costs on a partial indemnity basis in the amount of $6,616.72 inclusive of HST. Samine now seeks its costs in the amount of $7,000 all inclusive, the increase attributable to the preparation of its Costs Submissions.

[3] The appellants, Digital Shovel Holdings Inc. and Scot Johnson (collectively “DSHI”), do not dispute that Samine is entitled to costs or the scale of costs but submit that costs should be awarded in the amount of $5,192.92, all inclusive.

[4] The court may consider experience, rates charged, and hours spent in determining the quantum of costs, but this is subject to the overriding principle of reasonableness as applied to the factual matrix of the particular case: Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.). I see no issue with the hourly rates charged by counsel on a partial indemnity basis, nor is this aspect challenged by DSHI. Rather, DSHI takes issues with the six hours spent by Samine’s counsel for preparation and argument of the appeal.

[5] In my view, the time spent by Samine’s counsel in contrast to the time spent by DSHI’s counsel for this item, is modest in comparison. According to DSHI’s costs outline, senior counsel devoted 6.00 hours and an associate logged 32.60 hours for “Preparation of Appeal Materials” and an additional 2.00 hours by senior counsel for preparation for the hearing. This is not to say that the time spent by DSHI’s counsel was excessive. However, the reasonable expectation of the unsuccessful party is one of the factors to be considered in determining an amount that is fair and reasonable: rule 57.01(1)(0.b) of the Rules of Civil Procedure; Zesta Engineering Ltd. v. Cloutier, at para. 4; Davies v. Clarington (Municipality) et al., 2009 ONCA 722, 100 O.R. (3d) 66, at para. 52.

[6] As for the time claimed for preparing the costs submissions, this is an appropriate time to claim as part of the costs of the appeal, and the less than four hundred dollars sought is fair, reasonable and proportionate.

[7] I award costs to Samine in the amount of $7000.00 inclusive of HST as the amount sought is fair, reasonable, proportionate, and is well within the reasonable expectation of the appellants whose Costs Outline indicated partial indemnity fees, disbursements and HST of $12,963.80.

A.P. Ramsay J. Released: September 26, 2023