Moon v. Sher, (2004) 192 O.A.C. 222 (CA)

• Judge: Borins, Lang and Juriansz, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 16, 2004
• Jurisdiction: Ontario
• Citations: (2004), 192 O.A.C. 222 (CA);2004 CanLII 39005 (NS CA);2004 CanLII 39005 (ON CA);246 DLR (4th) 440;[2004] OJ No 4651 (QL);135 ACWS (3d) 202;192 OAC 222

Moon v. Sher (2004), 192 O.A.C. 222 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. NO.076

Garry T. Moon (plaintiff/appellant) v. Jonathan Sher, The London Free Press, Thomas Lawson, Estate of Guy Lombardo, The Guy Lombardo Orchestra, Inc., represented by Gina Lombardo Cudahy, Al Pierson, Nancy Pierson, Anne Marie DeCicco and The Corporation of The City of London, Peter Mansbridge, Karen Haslam, Douglas Flood, Nick Panaseiko, Tyrone Traher, The Corporation of The City of Stratford, and Dave Rock, Bruce Mungar and The Corporation of The Municipality of Central Elgin (defendants/respondents)

(C40322)

Indexed As: Moon v. Sher et al.

Ontario Court of Appeal

Borins, Lang and Juriansz, JJ.A.

November 16, 2004.

Summary:

Two defendants brought motions to stay the plaintiff's action because Ontario was not a forum having "a real and substantial" connection with the action or, in the alternative, Ontario was a "forum non conveniens".

The Ontario Superior Court, in a decision reported [2003] O.T.C. 566, allowed the motions. In a separate order, the court awarded costs in the amounts of $85,000 and $46,000 respectively for each of the defendants. The plaintiff appealed against both decisions.

The Ontario Court of Appeal, in a decision reported [2004] O.A.C. Uned. 468, dismissed the appeal on the motions.

The Ontario Court of Appeal allowed the appeal respecting costs. The amounts payable were reduced to $40,000 and $27,500 respectively.

Practice - Topic 6923.1

Costs - General principles - What rules applicable (incl. when to apply cost grid) - The successful defendants on a motion to stay the plaintiff's action on jurisdictional grounds submitted bills of costs totalling $149,457.63 - The motion judge awarded $131,000 - The Ontario Court of Appeal reduced this amount to $67,500 - Although the motions judge referred to a number of guiding principles, he fixed the costs in an amount that was not fair and reasonable - Had he given more weight to the plaintiff's counsel's submission respecting excessive preparation, the result would have been more in keeping with the reasonable expectation of the parties - In the end, the amount fixed by the motion judge was driven far too much by the hours actually spent by counsel and the rates provided by the grid rather than the need to reach a fair and reasonable result.

Practice - Topic 7061.1

Costs - Party and party costs - Counsel fees - Hourly rates - The Ontario Court of Appeal held: "As this court has held, to avoid a windfall it is not appropriate for a party to seek or receive an award of costs in excess of the fees and disbursements actually charged to it. Therefore, the hourly billing rates actually charged and the fees actually billed to the successful litigant are relevant considerations" - See paragraphs 41 and 42.

Practice - Topic 7122

Costs - Party and party costs - Special orders - Items not covered in tariff - [See Practice - Topic 7145 ].

Practice - Topic 7138

Costs - Party and party costs - Disbursements - Computer research - [See Practice - Topic 7145 ].

Practice - Topic 7145

Costs - Party and party costs - Disbursements - Items essential or reasonably necessary to conduct of action or appeal - The Ontario Court of Appeal held: "It would seem, therefore, that amounts disbursed for Quicklaw services, courier services, stationary and postage may be recoverable under Tariff item 35 if the service or expense is 'reasonably necessary for the conduct of the proceeding', the amount is reasonable and has been charged to the client, and the disbursement does not fall within standard office overhead. Indeed, as Quicklaw and similar search vehicles have become convenient aids to research, although not found in the Tariff, their costs should be recoverable as disbursements provided they are not excessive and have been charged to the client. It is for the party seeking recovery of the disbursements to satisfy these criteria" - See paragraphs 36 to 40.

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - The defendants brought motions to stay the plaintiff's action on jurisdictional grounds - The defendants made an offer to settle and proposed that the action be stayed without costs - The plaintiff rejected the offer - The defendants were successful on their motions - They submitted bills of costs totalling $149,457.63 - The motion judge awarded them $131,000 - The Ontario Court of Appeal found this amount excessive and reduced it to $67,500 - The court was mindful that the plaintiff could have reduced his costs exposure had he not rejected the offer to settle - However, the plaintiff's rejection of the offer to settle did not justify an unreasonable and excessive bill of costs - See paragraph 35.

Practice - Topic 7364

Costs - Costs of interlocutory proceedings - Costs of motions or applications - [See Practice - Topic 6923.1 ].

Cases Noticed:

Boucher et al. v. Public Accountants Council (Ont.) et al. (2004), 188 O.A.C. 201; 48 C.P.C.(5th) 56 (C.A.), consd. [para. 25].

Gratton-Masuy Environmental Technologies Inc. et al. v. Building Materials Evaluation Commission (Ont.) (2003), 170 O.A.C. 388 (Div. Ct.), consd. [para. 30].

Muscutt et al. v. Courcelles et al. (2002), 160 O.A.C. 1; 60 O.R.(3d) 20 (C.A.), refd to. [para. 34].

Bakhtiari et al. v. Axes Investments Inc. et al., [2003] O.T.C. 702; 66 O.R.(3d) 284 (Sup. Ct.), affd. (2004), 182 O.A.C. 185 (C.A.), consd. [para. 37].

3664902 Canada Inc. et al. v. Hudson's Bay Co., [2002] O.T.C. 432 (Sup. Ct.), affd. (2003), 169 O.A.C. 283 (C.A.), refd to. [para. 38].

TransCanada Pipelines Ltd. v. Potter Station Power Limited Partnership et al. (2003), 172 O.A.C. 379 (C.A.), refd to. [para. 42].

Authors and Works Noticed:

Malen, Robert D., The New Costs Rules: Theory Versus Practice (2004), Adv. Q. 432, p. 447 [para. 25, footnote 2].

Counsel:

Charles M. Campbell and Kumail Karimji, for the appellant;

Jamie Trimble, for the respondents, Estate of Guy Lombardo and the Guy Lombardo Orchestra, Inc.;

Rosemary A. Fisher, for the respondents, Al Pierson and Nancy Pierson.

This appeal was heard on September 8, 2004, by Borins, Lang and Juriansz, JJ.A., of the Ontario Court of Appeal.

The decision of the Court of Appeal was delivered by Borins, J.A., and released on November 16, 2004.