Hogan et al. v. Massaro et al., 2023 ONSC 6859

Court File and Parties

COURT FILE NO.: CV-22-085-00 DATE: 2023-12-05

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: TYLER HOGAN and TGH HOLDINGS LTD. v. BRENT MASSARO and BJSM HOLDINGS LTD.

HEARD: In writing

BEFORE: Fregeau J.

COUNSEL: D. Rosenbluth and E. Wall, for the Plaintiffs D. Zulianello, for the Defendants

Endorsement on Costs

1In my Endorsement dated November 7, 2023, I granted the plaintiffs’ motion to strike the defendants’ Statement of Defence. At para. 45 of my Endorsement, I stated that the plaintiffs were entitled to their “reasonable” costs of the motion. I have now received the Cost Submissions and Costs Outline of the plaintiffs and the Costs Submissions and Bill of Costs of the defendants.

2The plaintiffs seek substantial indemnity costs in the total amount of $18,002.17. Alternatively, the plaintiffs seek partial indemnity costs in the total amount of $12,707.42.

3The plaintiffs submit that substantial indemnity costs are warranted because the defendants’ conduct in failing to comply with the fundamental disclosure obligations in civil litigation made the motion necessary. The plaintiffs contend that substantial indemnity costs are appropriate when a court wishes to express its disapproval of the conduct of a party to the litigation.

4The plaintiffs suggest that $18,000 in costs on a substantial indemnity basis “is well within the defendants’ reasonable expectations for a motion of this kind”.

5The defendants contend that nothing in their conduct of the motion itself warrants substantial indemnity costs being awarded to the plaintiffs. The defendants submit that the plaintiffs’ filing of only a Costs Outline, rather than a detailed Bill of Costs, makes it impossible to determine if there was a duplication of work between counsel or what work may have been done by a clerk.

6The defendants suggest that the hourly rates charged by the plaintiffs’ Toronto counsel greatly exceed the hourly rates of local counsel with comparable experience. The defendants submit that the 41.6 hours docketed by plaintiffs’ counsel is neither reasonable nor proportional for a non-complex, procedural motion. The defendants submit that as a result, the costs claimed by the plaintiffs are far beyond their reasonable expectations.

7In my view, the hourly rate charged by plaintiffs’ counsel (D. Rosenbluth, called 2016, $600/hr; E. Wall, called 2022, $450/hr), while perhaps viewed as reasonable in Toronto, are excessive and well beyond hourly rates to be expected of litigation counsel with similar experience in the Northwest Region. Of note, counsel for the defendants, called in 2003, charges an hourly rate of $375/hr.

8I further find that the expenditure of 41.6 hours on a short, non-complex motion that was essentially undefended is unreasonable. Ms. Wall’s written and oral submissions were very well-done and helpful to the court. I have no doubt that she put in the hours set out in the Bill of Costs. However, it does not follow that all costs that flow from that preparation will be paid by the unsuccessful party.

9The defendants have filed their Bill of Costs for comparison purposes. However, the defendants’ Bill of Costs is of little utility in determining the defendants’ reasonable expectations for costs for this motion because the defendants did not file any materials on the motion.

10In Mudford v. Smith 2009 CarswellOnt 7111, at para. 7, Belobaba J. said the following in relation to fixing the costs of a trial or motion:

7. In Boucher, the Court of Appeal reminded trial and motion judges that fixing costs is not simply a mechanical exercise beginning and ending with a calculation of hourly time and rates. The costs award should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs to the successful litigant. In deciding what is fair and reasonable it is relevant to consider the expectations of the parties. When a quantum has been determined, it is then necessary to step back and consider the result produced and assess whether, in all the circumstances, the result really is fair and reasonable.

11In my view, a fair and reasonable amount to be paid by the defendants to the plaintiffs, given the nature of the motion and the reasonable expectations of counsel in the Northwest Region, is $7,500.00, inclusive of fees, HST and disbursements. These costs shall be paid by the defendants to the plaintiffs within 30 days.