COURT FILE NO.: CV-17-57196 DATE: 2024 01 04
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
United Mennonite Home for the Aged Plaintiff – and – Dan Gordon as Estate Trustee of the Estate of Eugene Gordon and Lois Gordon Defendants
Counsel: S. Carter and H. Leblanc for the Plaintiff A. Camporese, for the Defendants
HEARD: November 30, 2023, costs submissions due December 21, 2023
THE HONOURABLE JUSTICE R. B. REID
REASONS FOR DECISION ON COSTS
Introduction
[1] This action arises out of a debt owed by Eugene Gordon to the plaintiff on his death on February 14, 2015. He had been residing at the plaintiff’s long-term care facility in the town of Lincoln, Ontario.
[2] The plaintiff sued and received a default judgment against Lois Gordon, the wife of Eugene Gordon. The action against Dan Gordon as estate trustee is outstanding and scheduled for trial in April 2024.
[3] The plaintiff moved to amend its pleadings to name Dan Gordon in his personal capacity.
[4] For oral reasons given by me on November 30, 2023, the motion was dismissed.
[5] The parties were encouraged to resolve the matter of costs, failing which they could make submissions in writing according to a timetable. Those submissions have now been received.
Positions of the Parties
[6] The defendant seeks an order for costs on a partial indemnity basis in the all-inclusive amount of $11,975.18 calculated at 60 percent of his substantial indemnity claim. The Bill of Costs shows 33 hours of time expended. The defendant relies on his success in the defence of the motion as well as the fact that Dan Gordon is not a party in the proceedings and will not have any other recourse for compensation for defence of the motion.
[7] The plaintiff seeks either an order that each party bear its own costs or that there be an order for costs payable by the plaintiff in any event of the cause. The Bill of Costs submitted by the plaintiff identifies an all-inclusive claim of $8,440.08 on a partial indemnity basis calculated on the expenditure of 43 hours of time. If the plaintiff had used the typical 60 percent of its substantial indemnity rate, rather than 40 percent, the claim would have been $9,103.80 for comparison purposes.
[8] Although the plaintiff expended more time on the prosecution of the motion than the defendant in responding to it, the defendant’s lead counsel was more senior and used a higher hourly rate than counsel for the plaintiff.
Analysis and Conclusion
[9] The court’s discretion to award costs is found in s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and the factors to be applied in exercising that discretion are enumerated in rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[10] Success is a presumptive factor in the exercise of the court’s discretion to award costs, and the defendant was entirely successful. He is entitled to an award of costs. There is no reason to use the quasi-punitive substantial indemnity scale and therefore costs on a partial indemnity basis are appropriate.
[11] The plaintiff submits that it is a charitable organization with limited ability to pay. However, in my view that consideration is irrelevant because it was the plaintiff that chose to proceed with the motion, causing the defendant to incur costs.
[12] The plaintiff submits that the number of hours incurred, and the hourly rate used by the defendant’s counsel are disproportionate to the amount of the claim. I do not consider that the 33 hours expended by counsel for the defendants was disproportionate to the 43 hours expended by the plaintiff. The seniority at the bar by lead counsel for the plaintiff and the defendant was 14 and 39 years respectively. It is not unreasonable that defendant’s counsel should be able to claim an hourly rate substantially higher than that of plaintiff’s counsel. A client is entitled to hire counsel of her or his choice, regardless of seniority at the bar, with the corresponding obligation to pay counsel the rate charged.
[13] The plaintiff further submits that extra work was required by it including preparation of the supplementary motion record of November 21, 2023, in response to the position of the defendant that the motion hearing should be adjourned to be heard together with the anticipated summary judgment motion on a long motions list. That position was abandoned by the defendant at the opening of the motion hearing. One of the factors for my consideration under rule 57.01(e) is whether the conduct of any party tended to lengthen the duration of the proceeding unnecessarily. In my view, the position taken by the defendant up to the opening of the motion hearing falls into that category and as such there will be a reduction in the amount claimed by the defendant in the amount of $1,000.
[14] For the foregoing reasons, there will be an order that the plaintiff pay the defendant his partial indemnity costs in the sum of $9,597.50 plus HST of $1,247.68 for a total of $10,845.18, within 30 days.
Reid J.
Released: January 4, 2024