) ) LEANDRA RUTTAN v. BRANT COOK, 2017 ONSC 1157

CITATION : RUTTAN & COOK v. TOWNSHIP OF STRONG 2017 ONSC 1157 COURT FILE NO.: CV-12-0368 DATE: 20170216 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) LEANDRA RUTTAN and BRANT COOK Plaintiffs – and – THE CORPORATION OF THE TOWNSHIP OF STRONG Defendant ) ) ) ) ) ) ) ) )) ) Ilia Valitsky, Counsel for the Plaintiffs Michael M. Miller, Counsel for the Defendant ) ) HEARD: By way of written submissions REASONS FOR DECISION ON COSTS DiTOMASO J. THE MOTION [ 1 ] The Plaintiffs brought a motion to amend the Statement of Claim.

There were some amendments that were not the subject of objection by The Corporation of the Township of Strong (the Municipality). There were other amendments sought which were opposed. The Municipality did not consent to certain amendments sought as they allegedly related to an entirely new cause of action being asserted by the Plaintiffs. [ 2 ] The Municipality was entirely successful on the Motion. There was an order dismissing that portion of the Plaintiffs’ motion seeking amendments to the Statement of Claim opposed. [ 3 ] The Parties agreed that costs would be determined by way of written submissions.

I have received and reviewed those submissions. The following is my decision in respect of the issue of costs. POSITION OF THE PARTIES Position of the Corporation of the Township of Strong [ 4 ] The Municipality seeks partial indemnity costs in the amount of $5191.75, inclusive of fees, disbursements and HST and payment of those costs by the Plaintiffs forthwith. As the successful party, the Municipality asserts that it should be entitled to costs of the motion. While the Municipality was prepared to consent to some of the amendments, other amendments sought related to a new cause of action.

Counsel for the Municipality wrote to counsel for the Plaintiffs and so advised. The motion was argued after considerable preparation. It is submitted that the work involved in this matter was done efficiently and cost-effectively by senior counsel. The hourly rates and time spent were also reasonable in all the circumstances. Given the result obtained, the amount being sought is within the range of what the Plaintiffs, as the unsuccessful parties, should reasonably have expected to pay for costs on such a motion.

Position of the Plaintiffs Ruttan and Cook [ 5 ] The Plaintiffs take the position that the Municipality has overstated its partial indemnity costs. The Plaintiffs claim that the Municipality’s partial indemnity costs should be $3471.77 inclusive of HST and disbursements. [ 6 ] It is submitted that the partial indemnity rate should be at 60 percent of the actual rate. The costs claimed are excessive in that services of more junior counsel should have been used.

It is also submitted that there should be a reduction of time as there was waiting time involved with counsel for the Municipality also being involved before the same court for another matter.

ANALYSIS Entitlement [ 7 ] The Municipality was entirely successful on this motion. Therefore, it is entitled to partial indemnity costs which follow the event. Quantum [ 8 ] I disagree that this matter was of low complexity and did not necessitate a lawyer of Mr. Miller’s level of experience. I have reviewed the costs outline and bill of costs presented on behalf of the Municipality. I find the work was done efficiently and effectively by the Municipality’s counsel with Mr. Miller’s level of experience and expertise. [ 9 ] The matter was not of low complexity as evidenced by a reading of my Reasons.

The issue was of substantial importance to both parties. [ 10 ] I find the Municipality’s counsel had advised Plaintiffs’ counsel after receipt of the Draft Amended Statement of Claim in November 2016 that he was prepared to consent to the amendments related to the installation of a culvert. However, he would not consent to the amendments regarding the Cook’s driveway, as those amendments were not related to the current damage claim.

Nevertheless, the Plaintiffs proceeded to argue the motion. [ 11 ] In order to respond to the Plaintiffs’ motion, the Municipality’s counsel prepared a responding affidavit to provide the court with a history of the action and the upcoming dates. He also conducted research on the issue of whether the claim should be amended to add a new cause of action and prepared a factum and Book of Authorities to submit to the court on the issues. In addition, the court has considered the Rule 57.01 factors set out in the Rules of Civil Procedure . [ 12 ] In consideration of those factors, I find: (

a) The costs sought are modest in all the circumstances and are costs the Plaintiffs should reasonably have expected to incur; (

b) The Municipality’s counsel was an experienced lawyer in municipal matters and it was appropriate for him to oppose this matter; and, (

c) The issues were of some complexity and of substantial importance to both parties. [ 13 ] As for the issue of waiting time, Mr. Miller appeared in court on an unopposed matter which took less than ten minutes. There shall be no deduction in respect of waiting time. This matter was reached in the ordinary course of the civil motions list and was dealt with by me at the appropriate time without delay. [ 14 ] I have reviewed the rates sought and find that they are fair and reasonable in all the circumstances.

They are within the range of what the Plaintiffs should reasonably have expected to pay for costs on such a motion. However, I find that the costs claimed by the Municipality should be reduced to a partial indemnity rate which reflects 66 percent recovery (or two thirds of actual costs). [ 15 ] Accordingly, at the 66 percent rate, I fix the Municipality’s costs as follows: • Fees - $3876.30 • HST - $503.92 • Disbursements including HST - $186.97 • Total - $4567.19 [ 16 ] I find the Municipality’s costs in the amount of $4567.19 to be fair, reasonable and proportional in all the circumstances. (See Davies v.

Clarington (Municipality) , 2009 ONCA 722 at para. 51-53 ) CONCLUSION [ 17 ] For the reasons given, costs are fixed in the amount of $4567.19, all inclusive, payable by the Plaintiffs, Leandra Ruttan and Brant Cook, jointly and severally, to the Corporation of the Township of Strong within the next 30 days.

DiTOMASO J. Released: February 16, 2017