Case Name:

Tucker v. Canada (Attorney General)

Between

Elizabeth Ann Tucker and Paul Anthony Smihal, plaintiffs

(moving party), and

The Attorney General of Canada, The Canada Customs and

Revenue Agency and Rick Desrosiers, defendants

(responding party)

[2004] O.J. No. 2221

Court File No. 02-GD-53449

Ontario Superior Court of Justice

Granger J.

March 3, 2004.

(7 paras.)

Civil procedure -- Costs -- Solicitor and client or substantial indemnity -- Assessment or fixing of costs -- Considerations.

Determination of costs of the plaintiffs' motion for partial summary judgment. The plaintiffs' motion was dismissed.

HELD: The defendants were awarded costs of $70,889. Costs were awarded on a substantial indemnity basis because the plaintiffs' motion was not reasonable. It was important to the defendants to win the motion, and the time spent preparing the motion was not excessive. It was also complex.

Statutes, Regulations and Rules Cited:

Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194., Rule 20.06(1).

Counsel:

Raymond G. Colautti, for the plaintiffs (moving party).

Christopher Parke, for the defendants (responding party).

1 GRANGER J. (endorsement):-- In my Reasons released on December 23, 2003, I dismissed the plaintiffs' motion for partial summary judgment and invited counsel to make written submissions on costs, which I have received and reviewed.

2 The plaintiffs were unsuccessful on their motion for partial summary judgment, and as a result, I see no reason to deprive the defendants of their costs of this motion. Pursuant to Rule 20.06(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 "Where, on a motion for summary judgment the moving party obtains no relief, the court shall fix the opposite party's costs of the motion on a substantial indemnity basis and order the moving party to pay them forthwith unless the court is satisfied that the making of the motion, although unsuccessful, was nevertheless reasonable."

3 In my view, the plaintiffs have failed to establish that the bringing of the motion for partial summary judgment was reasonable, and as a result, the plaintiffs shall pay to the defendants their costs of this motion forthwith on a substantial indemnity basis.

4 The defendants seek costs fixed in the amount of $70,889.96, being $68,700.00 for fees and $2,189.96 for disbursements. The plaintiffs' dispute the amount claimed by the defendants for costs on the basis that the time spent by the defendants' counsel, being 229 hours, was excessive for this particular motion. In addition, the plaintiffs argue that the hourly rate claimed by counsel for the defendants should be $250.00 per hour as opposed to the $300.00 per hour claimed.

5 In support of their argument that the hours spent by Mr. Parke on behalf of the defendants were excessive, the plaintiffs' counsel have filed their docket sheets which show that Mr. Colautti and Anita Chatterjee spent 161.1 hours on this motion.

6 This was a complex motion which required a great deal of preparation. The dismissal of this motion was essential to the defence of this claim. If the defendants had lost this motion they would have been liable to the plaintiffs for any damages they suffered. In my view, given the fact that Mr. Colautti and Ms. Chatterjee spent 161.1 hours in preparing and arguing this motion it was not unreasonable for Mr. Parke to spend 229 hours as claimed preparing and arguing this motion. The time dockets submitted by counsel for the plaintiff show that Mr. Colautti was charging his time at the rate of $300.00 per hour. I am not prepared to make a distinction between the hourly rate of Mr. Colautti and Mr. Parke. The hourly rate claimed by Mr. Parke is within the Cost Grid and I will allow his claim for $300.00 per hour.

7 Accordingly, the defendants' costs of this motion are fixed in the amount of $68,700.00 for fees and $2,189.96 for disbursements.

GRANGER J.

cp/e/nc/qw/qldjv