Court File and Parties

Court File No.: CV-15-107-00
Date: 2025-06-30
Court: Ontario Superior Court of Justice

Between:
David Richard Reid (Plaintiff)
– and –
Area Municipality of the Town of Bracebridge and C.C. Tatham & Associates Ltd. (Defendants)

Appearances:

• Eric K. Gillespie and Bronwyn Martin, Counsel for the Plaintiff
• Charles M. Loopstra, Counsel for the Defendant Town of Bracebridge
• Varoujan Aman, Counsel for the Defendant Tatham

Heard in Writing: June 27, 2025

Justice: S.J. Woodley

Costs Endorsement

Overview

[1] On March 25, 2025, the plaintiff, David Richard Reid (“Reid”), brought a motion to set aside the Registrar’s Order dismissing the action bearing Court File No. CV-15-107 (“2015 Action”) for delay, dated May 13, 2024 (“Dismissal Order”).

[2] The defendant, Area Municipality of the Town of Bracebridge (“Bracebridge”) opposed the motion and alleged that Reid has “made no discernable efforts to advance the action since it was commenced on June 26, 2015”, almost ten years ago, except to serve a (flawed) Affidavit of Documents in May of 2021.

[3] The defendant, C.C. Tatham & Associates Ltd. (“Tatham”) took no position on the motion.

[4] For Reasons for Decision released on April 28, 2025, this Court held that Reid had not satisfied the legal test for setting aside a registrar’s order dismissing an action for delay. As a result, Reid’s motion seeking to set aside the Dismissal Order was dismissed with costs payable to Bracebridge.

[5] The defendant, Bracebridge, seeks costs:

• (a) relating to the dismissal of the action, fixed at $86,485.09, inclusive of disbursements and HST, on a partial indemnity basis; and
• (b) relating to the motion to dismiss, including security for costs, fixed at $57,211.74, inclusive of disbursements and HST, on a partial indemnity basis.

[6] No costs submissions were filed by Tatham.

[7] The plaintiff Reid opposes the amount of costs sought by Bracebridge and proposes that costs be fixed as follows:

• (a) relating to the dismissal of the action, fixed at $35,000.00, inclusive of disbursements and HST, on a partial indemnity basis; and
• (b) relating to the motion to dismiss, fixed at $20,000, inclusive of disbursements and HST, on a partial indemnity basis with no costs being awarded for the security for costs motion which was not required to be argued.

The Law and Analysis

Entitlement to Costs

[8] Section 131 of the Courts of Justice Act, RSO 1990, c C.43, provides that subject to the provisions of an Act or the rules of court, the costs of and incidental to a proceeding or step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[9] The general principle is that a successful party is entitled to costs. It is accepted that this general principle should not be departed from unless there is good cause to do so.

[10] The general principles that apply in fixing costs are set out in Rule 57.01(1) of the Rules of Civil Procedure, RRO 1990, Reg 194.

[11] Pursuant to Rule 57, in exercising discretion under s. 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle made in writing:

• i. the principle of indemnity, including where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged, and the hours spent by that lawyer;
• ii. the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
• iii. the amount claimed and the amount recovered in the proceeding;
• iv. the apportionment of liability;
• v. the importance of the issues;
• vi. the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding;
• vii. whether any step in the proceeding was,
  1. improper, vexatious or unnecessary, or
  2. taken through negligence, mistake or excessive caution;
• viii. a party’s denial or refusal to admit anything that should have been admitted;
• ix. whether it is appropriate to award any costs or more than one set of costs; and
• x. any other matter relevant to the question of costs.

[12] The fixing of costs is not a mechanical or mathematical exercise and 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. See: Davies v. Clarington (Municipality), 2009 ONCA 722; and Zesta Engineering Ltd. v. Cloutier.

[13] The overriding consideration is that the amount fixed for costs should be fair and reasonable in all the circumstances and is an amount that the losing party could reasonably have expected to pay if unsuccessful. See: Boucher v. Public Accountants Council (Ontario).

[14] I am required to fix costs in all but exceptional cases. This is not an exceptional case, and I will fix the costs.

Type of Costs Sought

[15] As costs relate to the action, on December 5, 2018, Bracebridge served a Rule 49 offer to settle the action on a without cost basis. The offer remained open for acceptance until trial and was not withdrawn prior to the dismissal. Despite the provisions relating to Rule 49, Bracebridge seeks costs on a partial indemnity basis. Costs will be granted on a partial indemnity basis as requested by Bracebridge.

[16] As costs relate to the motion, no offers were provided and it is assumed that none were exchanged that would affect costs. Costs will be granted on a partial indemnity basis as requested by Bracebridge.

Amount of Costs Sought

[17] As noted, Bracebridge seeks costs relating to the dismissal of the action, fixed at $86,485.09 and costs fixed at $57,211.74, relating to the motion, both inclusive of disbursements and HST, on a partial indemnity basis.

[18] Reid opposes the amount sought by Bracebridge and submits that costs should be limited to $35,000.00 for the action and $20,000.00 for the motion, both inclusive of disbursements and HST, on a partial indemnity basis.

[19] Reid’s objections to Bracebridge’s costs are as follows:

i. The sum of $86,485.09 is disproportionate for an action resolved before the completion of discoveries or any other significant pre-trial steps. The sum of $26,398 for pleadings and assessments is excessive and the work should have been done by a clerk, not Mr. Loopstra. The sum of $26,311 for document production and $14,655 for a partial examination of Reid is “exceptionally high”. Finally, no costs should be awarded re Mr. Martin’s participation in the consolidation motion as these costs relate to the application and not the action. Reid suggests that $35,000 is more appropriate; and

ii. The sum of $57,211.74 is “grossly inflated” because it includes a security for costs motion it sought to bring if the dismissal was set aside. Reid suggests that $20,000 is more appropriate.

[20] I have had an opportunity to review Bracebridge’s Bill of Costs and Costs Outline and the Costs Submissions of the plaintiff and I am content that the fees sought by Bracebridge, when awarded on a partial indemnity basis, are both reasonable and are costs that could reasonably have been anticipated to have been sought.

Costs of the Action

[21] With respect to the costs relating to the action, as detailed in my Reasons for Decision dated March 25, 2025, the within action was a complicated meandering lawsuit that was continually being derailed and delayed by Reid who created multiple proceedings which he sought to blend within the (now) dismissed action. The action was complicated by Reid who by his own action/inaction caused Bracebridge to expend excessive time and effort to move the matter forward.

[22] I reject all criticisms relating to the use or involvement of Mr. Loopstra relating to the action and/or motion including relating to the preparation of pleadings and the review of documents. Proper pleadings are critical to the success of any lawsuit. The suggestion that this task should have been completed by a clerk or junior lawyer is without merit. As for the documents review and disclosure, again, documentary disclosure and the protection of privilege warrants particular attention and expertise.

[23] Mr. Loopstra was called to the bar in 1969. He is an exceptional lawyer who possesses a great depth of knowledge. It is inconceivable that Bracebridge would retain Mr. Loopstra’s firm based on his expertise and experience only to have the file transferred to a clerk or a junior lawyer for completion. This is not what occurred nor what was warranted. In the present case, Bracebridge utilized Mr. Loopstra’s knowledge, experience, and expertise, during the course of the litigation as was warranted given the complications faced by Bracebridge, all of which were caused by Reid. Mr. Loopstra’s billing rate is extremely reasonable given his experience and expertise. When this billing rate ($700 per hour) is calculated on a partial indemnity basis ($420 per hour) – Reid’s argument regarding Mr. Loopstra’s involvement is rendered meritless. The quality of work and speed at which a senior lawyer can complete a task is generally reflected in an increased billing rate. Mr. Loopstra’s billing rate is limited – and is sought at a rate generally applicable to a mid-level lawyer not a top-tier lawyer. I give no credence to Reid’s criticism of the fees charged or the services provided by Bracebridge’s counsel.

[24] As for Reid’s argument that Mr. Martin’s involvement in the consolidation motion should be borne in the application and not the action – I disagree. Mr. Martin provided representation for Bracebridge in a timely and cost-effective manner. The fees relating to his appearance were docketed to the action. The action has been dismissed and there is no juristic reason that costs relating to Mr. Martin’s attendance should not be paid.

[25] As for Reid’s objection to the overall amount of costs sought by Bracebridge, Bracebridge is not claiming any costs for the period June 30, 2015 to March 27, 2017, when different counsel were on record. Given the complexity of the proceeding and the multiplicity of proceedings the overall costs sought are both proportionate and are below that that could be expected to be sought by a defendant in similar circumstances. I find no merit to Reid’s claim that the costs are disproportionate.

Costs of the Motion

[26] With respect to the dismissal motion – great care and skill was required to explain, simplify, and streamline the proceedings to the date of dismissal in a manner that made the voluminous materials understandable to the Court. Counsel for Bracebridge succinctly and efficiently satisfied this task.

[27] With respect to the cross-motion for security for costs, this motion was intended to be a term of any order should the dismissal order be set aside. Regional Senior Justice Edwards allowed the parties to put the issue of terms in any order setting aside the dismissal order as being relevant on the motion. Both parties submitted affidavit evidence and addressed the issue in their respective factums. Despite the motion being rendered moot by the dismissal of Reid’s motion – Justice Edwards already determined that such an issue could be put to the motion’s judge. In the circumstances, costs relating to the preparation of the motion materials and reply is properly payable within the dismissal motion.

[28] As for Reid’s objection to the overall amount of costs sought by Bracebridge, it is noteworthy that the time spent by Reid’s counsel was greater than that spent by Bracebridge. The only apparent difference is the partial indemnity rate and the utilization of senior counsel. I have already noted that the use of Mr. Loopstra was warranted and necessary in the circumstances. As for the billing rates attached to the other lawyers who worked on this file, I find the rates to be both reasonable and expected, given the year of call of the lawyers, their relative expertise, and the high quality of work provided to the file.

Conclusion

[29] In considering the costs award payable, I have determined an amount that in my view reflects a fair and reasonable assessment of the amount that should be paid to the successful party rather than an exact measure of the actual costs of the successful litigant. I have specifically considered the expectations of the parties, as a relevant factor.

[30] Having considered all applicable principles, including the principle of proportionality and fairness, both parties’ bills of costs and costs outlines, and both parties arguments, I hereby fix Bracebridge’s fees and disbursements for the costs of the action at $86,485.09 and for the costs of the motion at $57,211.74, inclusive of HST and disbursements, payable by the plaintiff to the defendant Bracebridge within 60 days of the date herein.

Justice S.J. Woodley
Released: June 30, 2025