Court File and Parties

Court File No.: CV-23-93571 Date: 2024/12/06 Superior Court of Justice - Ontario

Re: KMH Lawyers and Miriam Vale Peters, Applicants -and- Paul Kasanda, Elke Kasanda and L3 Prime Inc., Respondents

Counsel: Miriam Vale Peters, for the Applicants Félix P. Boutin, for the Respondents

Heard: In writing

Costs Endorsement

[1] The respondents to an assessment application, Paul Kasanda, Elke Kasanda and L3 Prime Inc. (“the moving parties”), had brought a motion for an order removing Mr. Kasanda as a party to the assessment. They argued that Mr. Kasanda had not retained the applicants, KMH Lawyers and Miriam Vale Peters (“the lawyers”).

[2] I dismissed the motion. I found there were sufficient indicia of a lawyer-client relationship to lead me to conclude that the lawyers were acting for Mr. Kasanda as well as Ms. Kasanda and L3 Prime Inc.

[3] The lawyers now seek their costs of the motion.

The lawyers’ position

[4] The lawyers seek partial indemnity costs of $11,318.87, inclusive of disbursements and HST. This amount includes $2,500 for preparation of the lawyers’ costs submissions.

[5] The lawyers argue they were entirely successful on the motion. They argue there is no reason to depart from the usual rule that the successful party is entitled to costs. They also argue the amount they are seeking is appropriate and proportional, given the complexity and importance of the motion.

[6] The lawyers say they attempted to settle costs so that cost submissions would not be required but the moving parties’ counsel did not receive instructions to settle.

The moving parties’ position

[7] The moving parties argue that, although they were unsuccessful in their request to have Mr. Kasanda removed as a party to the assessment, they succeeded in obtaining production of dockets and other documents from the lawyers.

[8] The moving parties also argue that the lawyers should have made it clear during the course of the retainer that they considered Mr. Kasanda to be a client, that they failed to do so, and that it was reasonable for the moving parties to seek a ruling on the issue.

[9] The moving parties submit that the lawyers refused to produce documents until after the moving parties brought their motion and that the lawyers added to the expense of the motion by filing a supplemental motion record outside the timelines agreed to by the parties.

[10] The moving parties argue that it would be appropriate for the parties to bear their own costs. In the alternative, they argue that, because the motion was necessary for them to obtain production of the lawyers’ dockets, any costs awarded to the lawyers should be limited to $5,215.20.

Costs: Some legal principles

[11] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, provides that the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court.

[12] Although discretionary, a court must fix costs on a principled basis. (Davies v. Clarington, 2009 ONCA 722, at para. 40).

[13] Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, sets out the factors the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing, in exercising its discretion under section 131 of the Courts of Justice Act to award costs. These factors include the principle of indemnity, including the experience of the lawyer involved, the hourly rate and the hours spent. They include the complexity of the proceeding and the importance of the issues. They also include certain conduct of the parties, including conduct that may have shortened or lengthened the duration of the proceeding or that was improper, vexatious or unnecessary.

[14] The Court of Appeal has made it clear that the fixing of costs does not begin and end with a calculation of hours times rates. It says the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay rather than an amount fixed by the actual costs incurred by the successful litigant. (Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para. 26).

Analysis and conclusion

[15] In my view, the lawyers were the more successful parties on the motion and are entitled to their costs.

[16] While the lawyers should have produced their dockets before the motion was brought, I am not of the view that the request for the dockets added significantly to the cost of the motion for the moving parties.

[17] The moving parties argue that the lawyers should have produced documents relating to the retainer issue before the moving parties brought their motion. However, as the moving parties proceeded with the motion even after the lawyers had served all of their motion materials, which would have included the requested documents, I place no weight on this particular argument.

[18] I have reviewed the lawyers’ bill of costs and considered the factors listed under Rule 57.01(1) of the Rules of Civil Procedure. The hourly rates and time worked appear reasonable, given the complexity and importance of the motion.

[19] I see no reason why the lawyers should not be awarded costs for preparation of their costs submissions, which amount to fees of $1,500 on a partial indemnity basis.

[20] In all of the circumstances, I conclude that it would be fair and reasonable for the moving parties to pay partial indemnity costs of $10,000.00, inclusive of disbursements and HST. Subject to an agreement by the parties, these costs shall be paid within 30 days.

Justice H. Williams Date: December 6, 2024