When It Comes To Costs, Location Matters
In recent costs ruling, a Kingston court considered a claim for costs by out-of-town counsel. The court concluded that the losing party should only pay costs based on what local counsel would charge.
The issue on the motion was the removal of plaintiffs’ counsel due to an alleged conflict. As the matter could not be resolved, the defendant brought a motion seeking counsel’s removal. At the “eleventh hour”, counsel for the plaintiffs agreed to step aside. The defendant sought her costs of the motion.
The court agreed that costs of the motion should be awarded to the defendant. With respect to the scale, the court held that partial indemnity costs were appropriate, with an award of substantial indemnity costs being reserved for special and rare circumstances.
With respect to quantum, the court noted that the deceased lived in Picton, Ontario, and that the action was commenced in Kingston, Ontario. The defendant retained Toronto counsel, with an hourly rate of $385, and $560 per hour for senior counsel. (It is not clear from the decision what the hourly rate of local counsel was.) The court stated that while the issue was not a simple one, out of town counsel were not required. “While I am sure that her counsel are worth every penny to [the defendant], a costs award here must consider what the plaintiffs ought to have expected to pay in conducting themselves as they did. In my view, it would have been reasonable for them to assume that her costs were roughly the same as theirs – that it, at the general Kingston rate for civil and estate litigation. As an access to justice issue, people should expect to pay legal costs contextualized by the communities in which they live and work.”
It should be noted that one of the factors set out in Rule 57.01(1) of the Rules of Civil Procedure, which sets out factors that the court may consider in exercising its discretion to fix costs, is “the amount of costs that an unsuccessful party could reasonably expect to pay in relation to a step in the proceeding for which costs are being fixed”.
In another case commenting on “out of town” counsel, the court disallowed travel time. “Although the Applicant is fully entitled to retain out of town counsel, the cost of the time for counsel to travel to Kitchener to argue the motions should not be visited upon the Respondent.” (However, there are many cases on this issue: some allowing travel costs and some disallowing them.)
Have a great weekend, wherever you are.