2013 ONSC 2842, 2013 ONSC 2842

CITATION : Chatterson v. M & M.Meat Shops Ltd. , 2013 ONSC 2842 COURT FILE NO.: 12/34314 DATE: 2013-05-09 SUPERIOR COURT OF JUSTICE - ONTARIO RE: RANDALL CHATTERSON, BRENDA CHATTERSON a.k.a. BRENDA HACKER and 1291008 ONTARIO LTD., Plaintiffs AND: M. & M. MEAT SHOPS LTD., Defendant BEFORE: The Honourable Mr. Justice D.A.

Broad COUNSEL: George Limberis - Counsel, for the Plaintiffs Evan Thomas - Counsel, for the Defendant costs ENDORSEMENT [ 1 ] The parties have now delivered their written submissions on costs as directed in my endorsement released April 4, 2013, in which the Defendant’s motion to change the venue of the action from Hamilton to Kitchener, Ontario was dismissed. [ 2 ] The Plaintiffs seek costs on a substantial indemnity basis in the sum of $11,173.37.

They support the claim for substantial indemnity costs on the basis that they served an offer to settle the motion by e-mail on the day prior to the hearing providing for withdrawal of the motion by the defendant with no costs to be paid by either party.

They argue further that the nature of the matter is such that the Court's discretion ought to be exercised in in favour of the Plaintiffs, and that the Defendants have brought a motion for leave to appeal thereby further prolonging the matter and increasing the costs unnecessarily to the prejudice of the Plaintiffs. [ 3 ] It is noted that the offer to settle was not served at least seven days prior to the hearing and accordingly Rule 49.10 has no application.

In any event, in my view, an offer to settle by a responding party to a motion should be substantial in order to attract consideration for an award of substantial indemnity costs. See Smith v. Hayden [2009] O.J. No. 814 (SCJ) at para 6 in support of this principle in the context of an action, which in my view is also applicable to a motion. An offer that the motion be withdrawn without costs, does not constitute a substantial offer. [ 4 ] The fact that the Defendant has brought a motion for leave to appeal is not a relevant consideration on the question of costs of the motion.

The defendant is perfectly entitled to bring a motion for leave to appeal and the fact that it has done so should play no

part in the costs determination. [ 5 ] The Defendant does not dispute that the plaintiffs should have costs of the motion on a partial indemnity basis. I see no reason why substantial indemnity costs should be considered. [ 6 ] The court is at a disadvantage in reviewing the Plaintiffs’ Bill of Costs in that it does not set forth the time claimed for the various steps undertaken in response to the motion.

It also fails to set forth the years of call of the two counsel involved to permit the propriety of the hourly rates proposed to be assessed. [ 7 ] The Defendant does not take issue with the number of lawyers’ hours claimed by the Plaintiffs as they total less than that set forth in the Defendant’s Costs Outline, but argues that the hourly rates claimed are too high. [ 8 ] I find that on an interlocutory, non-dispositive motion of this nature, of moderate complexity, partial indemnity rates of $175.00 for Mr. Limberis and $150.00 for Mr.

Allan would be reasonable. [ 9 ] I therefore order that the Defendant pay costs to the Plaintiffs fixed in the sum of $4,322.50 for fees, plus HST in the sum of $561.93 and disbursements in the sum of $326.22 for a total of $5,210.65. D. A Broad J. Date: May 9, 2013